Task Force on Use of Force in Law Enforcement - Report, NJ AG, 1992
Download original document:
![Brief thumbnail](/media/cache/75/db/75db0ea3846c68874b98ad639b5a8208.jpg)
Document text
![Brief thumbnail](/media/cache/75/db/75db0ea3846c68874b98ad639b5a8208.jpg)
Document text
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
REPORT TASK FORCE April 1992 REPORT OF THE ATTORNEY GENERAL'S TASK FORCE ON THE USE OF FORCE IN LAW ENFORCEMENT Table of Contents ............................................ page i Members of t h e Attorney General's Task Force on the Use of Force in Law Enforcement ............page iv Introduction and Overview ............................ p age I Foreword ...................................... page 1 The Establishment and Responsibilities of the Task Force ............................Page 3 Background .....................................page 4 Task Force Approach ............................ page 5 Overview of Findings and Recommendations ............page 7 Use of Force in Law Enforcement ..................... page 25 The Issues Police/Citizen Contact Use of Force S u N e y Purpose . . o.e*..p o.e*.. page page page 34 page 34 .................................*.page 35 Responding Population ..............*...........p... 35 Calls for Service ..............................page 36 Use of Force Incidents ......................... page 39 Excessive Use of Force .........................p age 41 Firearms Discharge Activity .................... page 43 ................................ page 47 --+Reco.endations Selection and Training of Police Officers ...........page 51 Pq'chological Screening ................. . . . . . . . p age 52 --bRecomendationa ............................. page 59 U s e of Force Training .......................... p age 60 Distribution - Reco&endationa. ........................... .page 73 ..........page 73 Recommendations .............................p age 76 Training of Internal Affairs Officers REPORT OF THE ATTORNEY GENERAL'S TASK FORCE ON THE USE OF FORCE IN LAW ENFORCEMENT Table of Contents (Continued) Investigation of Complaints of Excessive Force ......page 77 ...................................page 81 .Recommendations ................................ page 85 Monitoring Implementation ...................... page 97 Law Governing the Use of Force ...................... page 101 Observations Clarity page 105 ......page 116 Criminal Liability Commensurate with Culpability ..........................page 121 Recommendations ................................ page 125 Consistency with Constitutional Standards Appendix A Appendix B - General Principles of Justification ....page - Selected Bibliography ..................page 128 133 Respect for the law and confidence in public officers cannot be compelled. These attributes stand as a voluntary tribute to just laws and integrity in public office. While they exist both the law and the official will retain public trust. 1 There is no c0ntex.t.h which the relationship between the performance of public officers and public support for its officers is more complex than when a law enforcement officer uses force. Law enforcement officers are required to prevent crimes and apprehend criminals. Performance of these duties necessarily requires officers to confront and apprehend persons who violate the law, persons who do not always willingly submit to lawful authority. The public expects officers faced with resistance t o use reasonable force when necessary, yet demands that officers -i refrain from using unnecessary o r unreasonable force in confrontations with citizens. Recognizing that shared dissatisfaction concerning such encounters and their aftermath threatened to erode public Confidence in and undermine the morale and effectiveness of law enforcement officers, Attorney General Robert J. Del Tufo began to assemble this Tank Force in the fall of 1990. Its members include roprasantatives of community and civil rights groups as well a8 ropresentativss of the criminal justice system. In April of 1991, the Attorney General asked us to begin our work of reviewing current practices and procedurer in order to recommend 1 Bave8 v. Eudiwon Countv Board of FreQBolders 116 N.J. Super. 21, 26 (App. Div. 1971) (quoting PqoDie ex rel. Keenan v . McGuane, 13 Ill. 2d 520, 150 N.E.2d 168, 177 (1958)). i r e f o m that would "renew the traditional sense of trust between the public and- law enforcement community" and "restore a sense of common cause between law-abiding citizens and law-abiding law enforcement officers." After much study and debate we report our findings and offer recommendations that we believe will serve to strengthen the mutual trust and confidence upon which effective law enforcement depends. While each of us, if given sole responsibility, might have called for greater or different reforms in particular areas, we agree that the measures we propose, if fairly implemented throughout the State, will have that effect. We are regretfully mindful that no empirical data, however accurate, and no change8 in procedure8 or in the substance of the law relating to the use of force, however diligently pursued, can result in completely defusing the potential for violence inherent in police confrontations, particularly in c r h - r i d d e n neighborhoods. Anger, frustration and fear which may lie at or just below the surface in some communities can quickly escalate, with or without specific cause, when police arrive on the scene. it is not surprising that in such highly-charged emotional circumstances raaaon does not always prevail; indeeá, the likelihood of irrational conduct can becorns dangerously high. It is in thi8 context that law enforcement officera are often called upon to do their job. There is a desperate but largely neglected need for social, economic and political action to deal with the sen80 of privation and despair that permeates life f o r a large segment of our il society and which adds to the risk of violence. i It is of course far beyond the rolé of this Task Force to deal with these underlying root causes. We can only acknowledge their existence and join those who insist that these significant problems be addressed with a sense of urgency. Within the limited framework of our assigned responsibility, we have recommended reform designed to promote a sense of fairness and restraint without jeopardizing the public welfare. THE ATTORNEY GENERAL'S TASK FORCE ON THE USE OF FORCE I N L A W ENFORCEMENT TBE ATTORNEY GKNXRAL'S TASK FORCE OH THE USE OF FORCE IN L A W BNFORCEMEN!I! Frederick P. DeVesa First Assistant Attorney General Chairperson Leon Ariama Director of Public Affairs and Safety Plainfield, New Jersey Thomas J. Bitar, E e q . Dillon, Bitar & Luther Jeffrey S. Blitz Atlantic County Prosecutor Wilfred0 Caraba110 Public Advocate Department of the Public Advocate William a v e r s Department of the Public Advocate Thomas Smith Office of the Public Defender Sally G. C e r o l l New Jersey State Parole Board Colonel Jurrtin J. D b t i n o Superintendent New Jersey State Police Lieutenant Colonel Richard Jankuumki New Jer8q State Police Hajor Paiinick Trocchia Haw J e r r q State Police Daniel P. M u Chief o f Police Voorhaa8 Police Department Deborah B l l b Legal Director ,American Civil Liberties Union Viacent Framigen President New Jersey S t a t e Lodge of t h e Fraternal Order of Police tV Frank J. Ginesi president New Jersey State Policemen's Benevolent Association Rocco Halanga New Jersey State Policemen's Benevolent Association John J. Golba Chief of Police Newark Police Department , Keith Jones President New Jersey State Conference NAACP Moses B. Jones United States Department of Justice Community Relations Service Colleen McLlahon Sergeant of Investigations Sussex County Prosecutor's Office Edward Hartone Executive Director American Civil Liberties Union Edward M. Palardy Chief of Police West Orange Police Department Paul P. Pintella, Jr. President Urban League of Metropolitan Trenton T. PlOU8i8 Cherif f Cape May County Sheriff's Office J-8 W i l l i a m Ihnabna Capa May County Sheriff's Office Sharon B. Ramavago Hunterdon County Prorecutor Paul H. Robinson Distinguished Proferror of Law Rutgers-Camden V Clifford Gregory Stewart Director Division on -Civil'Rights Rolando Torres Division on Civil Rights Robert T. Winter Director Division of Criminal Justice Wayne S. Fisher, Ph.D. Division of Criminai Justice James R. Zazzali, Esq. New Jersey Policemen's Benevolent Association R o b e r t Fagella, Esq. New Jersey State Policemen's Benevolent Association vi i , INTRODUCTIûN AND ovsRvrBU The Issues "One of the fundamental duties of a police department, from Chief of police to patrolman, is to be on the lookout for infractions of the law and to use due diligence in discovering and reporting them, and in the proper case, arresting the perpetrator and lodging and prosecuting a proper complaint. "A police officer has the recognized duty to use all reasonable means to enforce the laws applicable in his jurisdiction, and t o apprehend violators. n 3 Off icers, unlike private citizens confronted with danger, are under "a legal compulsion to act" and not "free to turn Indeed, they risk administrative, civil or criminal charge if they do.5 They are "armed and required to act,"ó to make split-second judgments in tense and rapidly evolving circumstances, so that society, through enforcement of its laws, remains secure. When law enforcement officers abuse their legal authority to use force, however, the "law enforcer becomes lawless.n8 2 # t ate v. Donovan, 132 N.J.L. 3 Stata v. Cohen 4 State V. William S, 29 YmJ. 27, 36 ( 1 9 5 9 ) . 319, 321 (Sup. Ct. 1945). 32 PJnJn 1, 9 (1960). See State v. Donovan, 132 N.J.L. State v. Williams, 29 Y.J. Graham v. Connor, * The U.S. 319 (Sup. Ct. 1945). at 36. , 109 S . Ct. 1865, 1872 ( 1 9 8 9 ) . State v. Stevens, 203 N.J. SuDer. 59 (App. Div. 1984). result is "violence, oppresirion and injustice. w 9 While such incident8 are rare, the impact of a single incident is great. AS one police department's manual advises its officers: The success of a police department is largely measured by the degree of support and cooperation it receives from the people of the community which it serves. It is of paramount importance that w e aecure the confidence, respect, and approbation of the public. The cultivation of such desirable a t t i t u d e s i s dependent upon proper performance of duty by all members of the department l o It is obvious that "every segment of the community suffers when the public loses confidence in the very people to whom they should be looking f o r protection. To avoid an unwarranted undermining of confidence in all officers on the basis of isolated incidents of abuse of authority, an officer who has violated the law must be brought to justice. must To avoid undermining the morale of other officers who continue to protect the public under difficult circumstances, the process employed must be fair. Foreword to the Washington Township Police Department Rules and Regulations, quoted in policeman's Benevolent Association V. Townshir, of WarhinutoQ , 850 Er 2d 133, 138 (3d C i r . 109 S. Ct. 1637 (1989). 1988), cort. denied, U.S. 11 Giaseer, pn the u'ne: Police B r utalitv and its Remedies, lo - Preface (1991). l2 See State V. Stevens, 203 N . J . SuDer. 59, 65-66 (App. Div. 1984). 2 The Establishment and Responsibilities of this Task Force i \ Attorney General Robert J. Del Tufo assembled community leaders, law enforcement officials, police union representatives, civil rights leaders, law professors and practicing attorneys t o serve as his Task Force on the Use of Force in Law Enforcement. He established this Tisk Force to address concerns regarding the use of force and the manner in which incidents involving its suspected abuse are investigated and prosecuted -0 concerns expressed by both the general public and law enforcement officers. With the goal of renewing "the traditional sense of trust between the public and law enforcement community" and restoring ''a sense of common cause between law-abiding citizens and law-abiding law enforcement officers," the Attorney General asked this Task Force to recommend reform that would address the concerns of the public and law enforcement officers. Our recommendations were to be based on an evaluation of information concerning the use of force by law enforcement officers, the 1 methods of selecting and training law enforcement officers, the procedures for investigating and prosecuting incidents involving abuse of force and the sufficiency of laws authorizing the use of force and punishing itrr aburre. 13 l3 See Summrrry of the presentation of Attorney General Robert J. Del Tufo to t h e United Sates Commisrion on Civil Rights, Trenton, New Jersey, April 8, 1991. Letter from Attorney General Del Tufo to members of t h e Task Force dated April 4, 1991. 3 Backoround The e8tablishment of this Task Force is the most recent in a long history of efforts in this State to better protect the public by improving the administration of criminal justice. in 1961, the Legislature established the Police Training Commission to ensure that all law'enforcement officers in this State received the educational and clinical training necessary to insure the health, safety and welfare of the citizens of this State.14 In 1970, "in order to secure the benefits of uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the State," the Legislature charged the Attorney General with the responsibility of providing for "the general supervision of criminal justice. " 15 1'- For more than a decade, the Attorneys General of this State, through the Divisions of Criminal Justice, State Police and C i v i l Rights, and in cooperation with the county prosecutors, the Police Training Commission and law enforcement agencies throughout the State, have worked to provide officers with the training and guidance necerrary to perform their duties safely, in compliance with the law and in a manner that minimizes friction w i t h and warranta the confidence of the public. - These efforts include: Development an¿ frequent refinement of Attorney General Guidelines, directives and training material6 on the Ause of force; ' l4 - N l5 i -4 N.J.S.A. 52:17B-66. 52:17B-98, 52:17B-112. 4 Development chases; of Attorney General Guidelines on high-speed Development of improved and more frequent delivery of firearms training, which includes training in the legal restrictions on the use of force; ZFF The gathering and analysis of data concerning suits filed against New Jersey police officers and concerning discharge of firearms, for the purpose of improving training designed to prevent excessive use of force; The development of procedures through which the Division of Criminal Justice provides monitors and provides assistance in investigation of complaints concerning misconduct by l a w 4 enforcement officers; ' i /' The development, in cooperation with the Anti-Defamation League of B'nai B'rith, standards and training materials on all aspects of bias crime; A community-awareness program which, through the cooperation of the Divisions of Criminal Justice, State Police and Civil Rights and the United States Department of Justice, lead to the development of programs concerning conflict identification and resolution, and police profesaionalism and cultural-diversity awareness; Initiatives such as Urban-Initiative/Fighting Back, which involve close cooperation between law enforcement officers and community members; of Efforts to improve" the s Attorney General Guidelines on drug testin officers, including r Development of standards for disciplinary procedures and internal investigations to be employed in instances involving allegations of Meconduct by a law enforcement officer. Against this background, the Task Force began its work. Task Force A m r oach The Task Force convened for the first time on April 23, 1991. It was apparent to all that the causes for discontent with current practice, procedures and law governing the use of force and the investigation and prosecution of complaints were complex and that sensible suggestions for reform would require detailed study. 5 .-. ( Development chases; of Attorney General Guidelines on high-speed Development of improved and more frequent delivery of firearms training, which includes training in the legal restrictions on the use of force; - The gathering and analysis of data concerning suits filed against New Jersey police officers and concerning discharge of firearms, for the purpose of improving training designed to prevent excessive use of force;. The development of procedures through which the Division of Criminal Justice provides monitors and provides assistance in investigation of complaints concerning misconduct by l a w I enforcement officers; / The development, in cooperation with the Anti-Defamation League of B'nai B'rith, standards and training materials on a l l aspects of bias crime; ' i A community-awareness program which, through the cooperation of the Divisions of Criminal Justice, State Police and Civil Rights and the United States Department of Justice, lead to the development of programs concerning conflict identification and resolution, and police professionalism and cultural-diversity awareness; Initiatives such as Urban-Initiative/Fighting Back, which involve close cooperation between law enforcement ofiicers and community members; Efforts to improve rne selection of oZxacers, Attorney General Guidelines on drug testj-7; and including Development of standards for disciplinary procedures airiu internal investigation8 to be employed in instanceil involving allegations of misconduct by a law enforcement officer. ~ Againrt this background, the Task Force began its work. Task Force A D D ~ O ~ C ~ The Task Force convened for the first time on April 23, 1991. It was apparent to all that the causes for discontent with current practice, procedures and law governing t h e use of force and the investigation and prosecution of complaints were complex and that sensible suggestions for reform would require detailed s t u d y . 5 Accordingly, the Task Force divided into four subcommittees, t each responsible for providing the full group with detailed findings and recommendations. Recognizing the need to understand the frequency and the circumstances under which officers in thio State use force, the Task Force assigned one subcommittee to prepare a report on that issue , . . Recognizing that the proper selection and training of officers is essential to their ability to perform, the Task Force asked another group to study and recommend any needed reform in current relection and training policies. Mindful that the need for full and fair investigation of a l l suspected incident8 of improper use of force is critical to both the public and law enforcement officers alike, the Task Force asked a third s u b c o d t t e e to investigate procedures for handling such incidents. - Finally, recognizing that law governing the use of force and the puniahment of officers who abuse it might be inadequate and contribute to concern on the part of the public and officers alike, the Task Force asked the fourth subcommittee to evaluate the law. Each subcommittee reviewed relevant factual data, policies, procedures and training materials currently employed in New Jersey, model policier prepared by expert8 in the area and scholarly publications. Two of the subcommittees conducted surveys designed to gather additional factual data. Draft8 of each s u b c o d t t e e report were distributed prior to Task Fomo meeting8 and each draft report war extenrively dircur8.d by tha full Task Force. The subcommittee reports were then re-drafted and refined in light of the recommendations of the other members of the Task Force and represented for approval of the full. Tark Force. The full Task Force met seven times between April 23, 1991 and April 13, 1992. The four chapters that follow are a product of this process. 6 Overview of Findinas And Rec<*IAIndations Char>ter One : - Information Concernina Use of Force Chapter One of this Report summarizes and analyzes available data concerning the frequency with which law enforcement officers i t 1 i i in this State employ deadly, non-deadly and excessive force. 1 i Law enforcement oeficers use deadly force in an extremely small percentage of their encounters with members of the public. I ’Based on data supplied by 502 of the 543 law enforcement agencies in this State, in 1990, law enforcement officers in this State handled over 8,500,000 calls for service and discharged their I Stated differently, when jl-firearms in only 167 incidente. ; compared with the number of officers involved, only one of every 161 officers was involved in a firearms discharge incident in 1990I It is clear that use of deadly force is a rare event. , - h..ile it is fair to conclude that deadly force is rarely used, due to the absence of standard procedures for reporting use / o f non-deadly force and the lack of any common understanding as to what contact =- ranging from handcuffing an arrestee in compliance with department policy to phyricaï altercations =- should be considered a use of non-deadly force, the Tark Force i s unable to report with certainty on the frequency of the use of non-deadly force. Nonetheìer8, on the basis of available inf-ormation, publirhed studies conducted drewhere, complaints filed with law enforcement agencies and a two-year rtudy of s u i t s filed in federal and State court against New Jer8ey law enforcement officers, the Ts&k Force believes that the use of 7 non-deadly force ir also infrequent when compared with the total number of poiice/citizen contacts. ‘ Again due to lack of common definitions and uniform standards I for recording complaints and dispositions of complaints alleging 1 excessive force, the Task Force cannot report with any degree of i certainty the frequen& with which law enforcement officers use excessive force or even the frequency of allegations that such I force is employed. A total of 576 muits were filed against law 1 ‘enforcement officers employed in this State during the two-year I ‘period of 1985 and 1986, 43% alleged assault and battery. i Considering that information and the limited available information concerning complaints recorded by law enforcement . agencies throughout the State, the Task Force can only conclude that complaints which the agencies record arr involving excessive force are infrequent when viewed in the context of all g police/citizen contact, and that the number of these complaints has changed little between 1988 and 1990. Despite theme data, it i m apparent that public perception of the frequency with which law enforcement officers use brutal force ir quite different. A high percentage of people surveyed in a recant, nationwide Gallup Poll believe that incidents like the one involving Rodney King, which was captured on videotape in March of 1991, occur at learnt momewhat frequently. But public opinion on police brutality ir also difficult to decipher. While 688 of those responding to the Gallup Poll believed that incident8 like the one in Lor Angeles occur v e r y or somewhat frequently, only 20% of the respondents believed that 8 \ incidents of that nature occur in their community and only 20% responded affirmatively when asked if they knew a person who had been treated similarly. The Task Force has concluded that the quality of data pertaining to the use of force must be improved in order to gain any real understanding of the nature or magnitude of any problem concerning the use of force in law enforcement. Accurate information is also essential to understanding and perhaps closing the gap between reported incidents of excessive f o r c e and public perception of the frequency with which excessive force is used. Accordingly, the Task Force recammends the following: c o d t t e e of criminal justice professionals should be appointed to identify and define infoxmation concerning the ase of force that law enforcement officer8 and law enforcement agencies mhould be required to report and collect. The c o d t t e e al80 should design m t h o d s to assist law enforcement agencies in collecting, campiling utilizing the data gathered. A L Standard definitions identifying levels of force that officer8 must report should be daveloped. All law enforcement officers should be required to file reports concerning the use of such force and all lav enforcement agencies should be required to Collect u3d Mintain these reports. All citizen c-laints alleging excessive use of force and information concerning the disposition of much caplaint8 mhould be recorded. Bach law aaforcaœnt agency should be required to file an annual report with the county prosecutor indicating the total nurber of h c i d e n t s involving use of force, the total nuiber of incidents hvolving f h e u r s disCharg88 and t h e total number of h i d e n t 8 fnvolving alleged ume of exce8oive force. These reports should be made available to the public 9 Bach county proaecutor'm annual report to the Attojcney Gsneral should include the &ta reported by law enforcement agencies. ChaDter "wo: Selection and Trainincf of Law Enforcement Officers Law enforcement officers are entrusted with "exercising the most awesome and dangerous power that a democratic state possesses with respect to its residents-the force to arrest and detain them."lá power to use lawful The selection and training of persons who will be given this authority is clearly critical. Individual officers are the key factor in the performance of duties that demand t h e exercise of round discretion under potentially confrontational circumstances. A. Selectioq. State law establishes xninhum standards for ' Lhe selection of law enforcement officers I -0 they must be citizens, of good character, sound body and good health, be able to read, write and speak Englilrh and have sufficient intelligence and skill to successfully complete the baric training course mandated by the Police Training C o d r r i o n . Despite this attention to selection of officers who are fit and qualified, prychological testing to screen-out persons who lack the emotional stability and psychological fitness needed t o carry out the duties of a law enforcement officer or endure the rtress of the conditions in which there officers perform is not uniformly required. Numerous rtudies indicate the importance of such screening. n'a Benevolent Asrociatron o f New Jersey v. I 850 L 2 d 133 (3d Cir. 1 9 8 8 ) , Gort. denied, I -. s. 16 us -I 109 Ct. 1637 (1989). 10 . , i? i The Task Force also discussed whether psychological tests i should be administered subsequent to an officer ' s appointment i n order to determine whether veteran officers remain f i t and qualified. The evidence of the utility of such tests, when compared to careful evaluation of the performance of individual officers, is less cleai.'. And, because the views of individual members of the Task Force ranged from support for routine, universal psychological testing to opposition to any such testing, the Task Force generally agreed that there was 5. I insufficient evidence to recommend a uniform policy on in-service psychological testing. Thus, the Task Force recoinmends the following: 0 j b The Attorney General should s e e k to introduce Legislation requiring the Police Training CommPisrrion to establish standards for psychological testing and requiring all law enforcement agencies to adahister tests meeting those standards prior to appointing a candidate as a police officer. The Divirion of Crisinal Justice rhould bring together experts to develop a model policy concerning ia-service psychological testing, and police depart#ntr rhould be encouraged to develop and implement policias concerning in-semice pßychological testing that provide clear criteria as to when such testing is warranted. B. Tfaininq. Given its mission, the Task Force focused on the adequacy of basic and in-service training addressing the use of force in law enforcement. The ba8ic course, which addresses police community relations, patrol conceptr, unarmed defense, baton utse, firearms use and all aspects of the law governing the use of force, is well-developed and continually refined in light of legal developments and improvement0 in law enforcement 11 techniques designed to reduce the need for the use of force. Effort8 such as those currently underway to stress the uae of verbal communication skills as a means of de-escalating the need for the use of force should be continued. In-service training on the proper u849 of firearms is statutorily required o i an annual basis, but due to Attorney Aneral directive, thi8 training is delivered on a aemiannual basis and has been extended to include re-training on the law governing the use of force. While some law enforcement agencies provide additional in-service training, there is no uniformity in this regard. And, although the Department of Law and Public Safety has developed in-service training programs on police professionalism and cultural diversity awareness, which are being i offered throughout the State, the program is not mandatory. Further, there are currently no programs designed to explain thz importance and nature of the police function to members of the community or to educate local public officials responsible for civilian oversight of police departments concerning their responsibiìitier. Accordingly, the Task Force recomenda the follwing: O The Attorney General should reek the introduction of legislation directing the Polico Training C d s r i o n to develop fn-morvico trainhg requir~iantsand mandating that a l l law anforcement officers roccerrfully complete t h t trlfning. O The Iægirlation 8hould provide funding for in-mervice training . Police h d n h g C d r r s i o n rtaff should be directed to continus to review and revise use of force curricula to incorporate the latest 12 i ~ b legal and technical developrents, in particular development of verbal c m n i c a t i o n skills. And, the Attorney General should continue to update directives and guidelines concerning the use of force to reflect changes Fn the law. The continued development and delivery of training and public awareness program8 dealing with cultural. divermity, the role of the police officer:'and the responsibilities of local government officials for oversight of police departments should be encouraged. c. Trainina of Officers ReSDOnsible for Internal Affairs ïnvestiaations. As diecussed below, Chapter 3 of this Report recommends full-implementation of the "Internal Affairs Policy and Procedures" recently developed through the cooperative efforts of the Division of Criminal Justice and the New Jersey State Association of Chiefs of Police and issued by Attorney General Del Tufo. Successful implementation of the substantial improvements outlined in these current procedures will require training of the officers asirigned this task. Accordingly, the Task Force r e c r n d 8 the following: The Division of Cr-1 Justice should develop mtandardized guidelines for internal affair. training and this training should be made available to ail officers arsignad to conduct internal affairs investigations. and responds to citizen complainte concerning the uee of excessive force is critical to the morale and effectiveness of ' officerr and to the public's trurt and confidence in law enforcement. Mtmber8 of the community and fellow officers must 13 feel free to make 1,egithte complaints and to bring problems to the attention of responsible officials. If problems concerning the use of force are to be identified and addressed, officers and citizens alike muet be confident that the filing of a complaint will lead to a thorough, objective investigation and a just result . t Prior to the recent issuance of "Internal Affairs Policy and Procedures" and to Attorney General Del Tufo's directive requiring all law enforcement and prosecutorial agencies in the State to conscientiously implement the standards and procedures for receipt, investigation and disposition of use of force complaints contained therein, there were no uniform practices. The Task Force considers this lack of uniformity to be the most significant factor contributing to the perception, which law enforcement officers and citizens seem to share, that the system is not fair and does not lead to just results. It ha8 led some members of the public to conclude that the system shields officers who abuse their authority and it has led some officers to conclude that even a proper uae of force will be presumed abusive. Tho Task Force has concluded that implementation of the policie8 and procadurea outlined in "Internal Affaira Policy and Procedurea" as amplifiad in Attorney General Del Tufo's accompanying directives to law enforcement officials and county prosecutors will do much to remedy these problems. Together these documents establish a uniform, statewide aystun for handling complaints. Under this system, all complaints must be 14 ' ( --.i recorded and thoroughly investigated by officers trained in b o t h - - ---~ , criminal investigation; and administrative proceedings. The i , result of the investigation must be reported to the complainant and recorded for inclueion in an annual report which must be provided to the county prosecutor. The document provides for an additional measure of uniformity, predictability and fairness by establishing standards for officials to apply in determining when an officer named in a complaint or involved in an incident involving discharge of a h firearm or a suspected use of excessive force should be ---_'--reassigned or suspended. \-- In order to ensure that all perceive investigations of serious matters to be objective and fair, the unifonn policy requires immediate notification and involvement of the county prosecutor or the Attorney General, through his Division of Criminal Justice, when an investigation involves the discharge of a firearm resulting in injury or any use of force resulting in serious injury - _ - or death. Finally, in directing that "any matter which involves factors indicating the posrible Ume of unjustified force by a law enforcemnt officer which resulted in death or rerfous bodily injury mhould ordinarily be presented to the grand jury for review and disposition, particularly in carea involving factual dirputer," the Attorn8y ûeneral has provided for an independent conmiunity judgment of there serious matter8 that rhould ensure citizens that law enforcement officials and the elected public officials responsible for their supervirion are not rrhielding 15 ,-. officers. Application of this objective standard for referring i matters t o the grand jury should also do much to eliminate concern on the part of officers that individual cases are presented to the grand jury on an arbitrary bash. While the Task Force atudicd and debated the question of establishing civilian 'kview boards to conrider allegations of police misconduct, it agreed that the uniform system establiahed in this State should be tested firat. 10 recently In this regard, the Task Force considera it quite significant that each police agency In thi8 State, under current law, ia aubject to oversight by and directly answerable to elected officials. Accordingly, the Task Force, with minor modifications, recommends continuation of the conscientious implementation of the syatem for investigation and disposition of complaints recommended in "Internal Affaira Policy and Proceduresn and of the Attorney General's directives concerning referral of cases to the county prosecutor, Division of Criminal Juatice and grand jury. Chapter 3 of thia report includes a propoaed schedule f o r implementation and publication of reporta detailing progress toward that goal. r e c Tha assential c a p n e n t 8 of the mystam m u. as follow: All citizen colpldntr should be accepted, recorded and inveatigatd thoroughly and objectively and uith.raapect for the right. of officers under investigation. The invertigations rhould be conducted by officers trainad in both crisinal and rdpiairtrative investigations. 16 Coœplaint brrd incidents involving the posnible use of excessive force or discharge of a firearm resulting in injury or death should be reported to and investigated vith appropriate oversight by the County Prosecutor or the Division of Criminal Justice . Any matter vhich involves factors indicating t h e possible use of unjustified force by a law enforcement Òf-ficer which resulted in death or serious bodily injury should ordinarily be presented to the grand jury for review and disposition, particularly in cases involving factual disputes. L a w enforceEtent agencies should apply uniform etandards to determine an officer'. duty assignment pending the outcome of an investigation. These standards should include a p r e s w t i o n in favor of administrative reassignment in cases involving a une of force vhich resulta in death or serious bodily injury. Records of caqlaints, investigations and dispositions of ratters involving su~pected use of excessive force c q l a i n t s should be kept. -! Disposition8 and reasons for diapositions should be disclosed to the complainant and the officer. O Bach law enforcetment agency should be required to complete an annual report sumarizing, without identifying individuals, the nuibsr and typcra of complaints received and the dispositions of there coipldnt8. The report mhould be rade available to the public and filed with the county prosecutor. Bach county prosecutor'r annual report to the lbttornq General should include a -8 of the croturty'm oxcersfve force coæplahts and their di8po8itiOn.0 The d f o r r procedures for external overright of fnvemtigatfons by county pro8ecutorm, the Division of Cridaal JU8tiC. and the grand jury should be implemented. M e a e ~ a rto -lament the procedurem and standards outlined above mhould be taken with all due diligence in accordance with the mchdule for compliance included in Chapter 3 of this report. 17 Chanter Four: Law Governinu the Use of Porca Society has an interest in the vigorous enforcement of its criminal laws. For this reason we authorize and require law enforcement officers to use reasonable force when necessary to perform their duties.. In tense and uncertain circumstances often \ - involving grave personal danger, we expect law enforcement officer6 to make rplit-second decisions and take appropriate action so that society may remain secure. Society has an equally significant interest, however, in seeing that officers do not "unjustifiably" coerce, threaten, restrain, injure or kill in the name of law enforcement. Statutory and constitutional rules describe when and how much force law enforcement officers may use. These rules distinguish "justifiable" and appropriate from "unjustifiable" and inappropriate law enforcement conduct. Law enforcement officers must operate within the boundaries set by these rules. They have a duty to obey the law and to enforce it, and their adherence t o both is essential to preservation of a free society. A. The Need For C l e . Given the importance of statutes defining when and how much force may be used in furtherance of law enforcunent, the Tark Force began with the airrumption that there laws mast ba clear and understandable. Officers are often required to make 8plit-second judgment8 in tense, uncertain, and rapidly evolving circuistancer, and the law should clearly identify, not obfurcate, the judgment8 they muat make. Currant statutes governing the use of force in law enforcement, self-defense, defense of others and defense of 18 property, each potentially applicable to the conduct of law enforcement officers in the performance of their duties, are too detailed and complex to be applied under circumstances requiring rapid judgment and quick action. The statutes describe when and the amount of force that may be ured through a series of detailed and specific hier, each with numerous exceptions and limitations, and cross-references to exceptions and limitations. The Task Force has concluded that these rpecific, detailed and I t' confusing rules can be subsumed in, and more comprehensibly /I i / -stated as, general principles incorporated in fewer statutory provisions. Accordingly, the Task Force recnaaiurnd8 the follawbg: 0 % . Current detailed mtatatory rules and exceptions governing the use of force in law enforcement should be replaced with m r e co~prehenrible, general rrtandards. Statute8 governing the urre of force in relf-defenre, defense of other8 and defense of property should be combined in order to avoid the need for confusing crear-reforencem and should also be revirreã to replace detailed statutory rules and exception8 with m r e corprehen8ible, general 8tMdmd8 B. The Need for Consirtencv with Constitutional Standards. As noted above, t h e use of force in law enforcement is subject to both statutory and conrtitutional restrictions. decision renderad in the care of Tenne ssea V. In 1985, in a Garnel;, the United States Supreme Court announced that a law enforcement officer's use of deadly force to apprehend a perron rurpected of a crime is constitutionally permirribìe only if a failure to effectuate the suspect's immediate arrest would pore a threat of serious 19 physical harm to the officer or others. Current statutory law authorizes the use of deadly force in arrest on a different basis. It focuses on the crime committed rather than the danger posed by the suspect. As a result, New Jersey statutes pennit the use of deadly force in some cases in which Garnet would noti,,and prohibit its usa in some cases where Garner would p e x d t it. Statutes similarly fail to account for constitutional restrictions on the use of non-deadly force. In 1989, in Graham v. Connor, the Supreme Court held that no forca used in law enforcement is constitutionally permissible unless it is "reasonable under the circumstances." Current statutory law does not limit the use of non-deadly force in thio manner. i Although these inconsistencies have been reconciled in guidelines issued by the Attorney General, the Task Force nonetheless recommends amending statutory law to conform with the constitutional standards. The current inconsistency creates an intolerable level of confusion where clear guidance is needed. Further, an officer who has acted in accordance with constitutional limitations should not be rubject to punishment for a c r i n under the laws of this State, and the laws of t h i s State ohould not authorize force that is inconsistent with the constitutional rightr of its citizens. Thur, the Tamk Force d e s the following recorr-ndations: Statutory l a w d e f i n i n g when and the aiount of force t h a t ' m y be used h law enforcement rhould be amended to otate standarda consistent with constitutional restrictions. 20 Use of non-deadly force for law enforcement purposer qhould be justified only when immediately necarsary and =reasonable under the circumstances" to accomplishment of an officer's lawful duty. ,- U 8 8 of 'deadly force' for law enforcement parposes should be justified when hmeàiately necessary: (a) to effect a lawful arrest of a person who would pose a substantial risk of serious bodily injury to any pereon if appehension were delayed; (b) to prevent the c d 8 i i o n of a C r h involving a substantial risk of M a t e death or rrerioue bodily harm to any parrron; or (c) to prevent an escape from a prison. C. Criminal Liabilitv Commensurate with CulDabiïity. The Task Force also examined current law in order to determine whether the law provided appropriate ~anctionsfor law enforcement officers who use excesuive force in the performance of their duty. Here, the Task Force began with the premise that the criminal law should distinguish between and provide different punishments for officers who intentionally inflict injury or cause death without jurtification, and officers who knowingly cause such injury becau88 they believe, albeit unreasonably, t h a t the circumstances with which they are confronted in the line of duty require the U88 O f force. Undar current law, an officer who purposely or knowingly c a u s c ~d m t h bocause he mistakenly believer that the use of deadly force is necessary to protect the life of an innocent citizen, to effect the arrest of person who has just committed a homicide, or .to preserve hi8 own life from a threat encountered in the line of duty, has a complete defense if his mistake is 21 reasonable. If thq officer's belief is recklerr, or even negligent, however, the officer is liable for murder if he knowingly causes death. Recognizing the possible consequences of this rule to public safety officers, the Supreme Court recently suggested that the \ Legislature reconsider'its recent abolition of a common law r u l e which provided a mitigation for officers who acted because of such unreasonable belief. After considering the consequences, the Task Force recommends reform. Officers are under a legal compulsion to act and must make split-second decisions in circumstances that art tense and fraught with danger. An officer acting in furtherance of h i s lawful duties who believes, albeit unreasonably, that the circumstances justify his conduct is simply not aa blameworthy as an officer who kills or injures without such a belief. Accordingly, t h e Ta8k Force rac-nd8 0 the follcrwing: The law rhould be amended to provide a mitigation for officer8 acting ia the lawful perforrance of their duties who negligently or recklemsly balieve that the circuæstance justify the use of force. An officer whose airtake is negligent should have a completo defenae to any offanse other than one requiring negligence am to any element-- for example, negligent injury with a deadly wrpon. is reckless should havo a cooplet8 defonse to any cri# other than one r e q u h b g reck~essne~8 or negligence ar to any element for example, negligent injury with a deadly weapon or recklsua ~nslanghter. & officer d o s e a i r t a k e -- 22 c-' D. SDecific Public Policv Judaments. Laws defining when and how much forcë may be used in law enforcement, together with those that define the extent of a law enforcement officer's duty to act and the extent of a suspect's duty to submit, embody society's view of the proper balance of its interests in preventing crime, apprdhending criminals, protecting the public safety and preserving individual rights. The Task Force, for t h e most part, has attempted to recommend clarification of statutory law without altering the balance the Legislature has struck. The Task Force is mindful, however, that the policy judgments incorporated in current law can be revised to reduce the likelihood of forceful encounters between police and citizens. For example, if the public were willing to sacrifice vigorous enforcement of the criminal law in order to avoid forceful encounters, the law could absolve officers of the duty to arrest persons who resist or direct officers not to pursue suspects. Alternatively, if the public is unwilling to relieve officers of the duty to pursue persons who do not comply with lawful orders but is nonetheless interested in limiting dangerous chases and encounters, the law could be revised to discourage flight by imporring rtrict ranctionr for non-compliance with orders to halt. w h i h the Task Force has not attempted to resolve these difficult questions of public policy, it recommands that the Attorney Ganara1 conrider whether it ir appropriate to solicit additional public opinion on these issuer. 23 e The Attorney General should consider soliciting additional public opinion on the following issues: 1. Should law enforcement officers be absolved of the duty to arreet permone who resist or flee. 2. Should the law be revised to impose strict sanctions for non-coripliance with orders to halt or 8-t 60 me8t. coblcLus~oH Attorney General Del Tufo gathered this diverse group together and asked us to review current practices, procedures and law relevant to the use of force in law enforcement in order to recommend reform. His goals were to "renew the traditional sense of trust between the public and the law enforcement community" and "restore a sense of common cause between law-abiding citizens and law-abiding law enforcement officers." The report which follows represents our effort to fulfill these responsibilitier. The issues with which we grappled were complex, and the process of reaching a consensus was difficult. Implementation of the recommendations outlined here will be no aarier . The mmbers of the Task Force, encouraged and enriched by the exchanga of view8 that led to this report, are confident that the goal8 of t h e Attorney General while elusive are, with vigilance and effort, attainable. 24 USB OF FORCE IN LAW ENFORCEHBNT The Task Force quickly recognized that an assessment of l a w enforcement use of force as it currently exists in New Jersey a necessary foundation forthcoming in dealing'with for any progress which this complex issue. would was be The Task F o r c e relied on various sources of information to determine the exteat and nature of the use of force by law enforcement. The most important was a survey designed and administered by the Task Force to estimate the frequency with which force is actually utilized by law enforcement in New Jersey. gather information about calls for The survey sought to service, use of force incidents, complaints of excessive force and firearms discharge incidents. research In addition, literature with the Task Force reviewed existing regard to police use of force and collected published information pertaining to public perception of both the frequency of police use of excessive force and the appropriateness of using force in specified situations. Much effort has been devoted to the study of deadly force incident6 with one major study concluding, *it comes as no surprire that when compared to the total number of contacts police officers have with civilians, police-civilian shootings are extremely infrequent events.*17 The New Jersey Task Force survey resulte, reported later in this chapter, rupport this l7 Geller, W.A. (1982). Deadly Force: What we know. Journal of Police Science and Adminirtration, 10(2), pp. 151-177. 25 Police agencies responding to the New Jersey survey report view. that they handled 8,666,93418 calls for service during 1990 and discharged their weapons in only 167 incidents. Stated otherwise, the use of deadly force by police officers in New Jersey is a rare event, occurring about once in every 52,000 calls for service. Adgitional information available to the Task Force further supports the conclusion that the discharge of a weapon at other persons by law enforcement officers in New Jersey is a rare occurrence. Agencies responding to Task Force survey items pertaining to calls for service and firearms discharges employ a Recalling total that of 26,852 167 shooting sworn law enforcement officers. incidents were reported in the survey, another way to view the frequency of police use of firearms is by noting that only one of every 161 officers was involved in a firearms discharge incident during 1990. While the literature is replete with studies regarding police use of deadly force, there are very few studies focusing on police use of non-doadly force. As a result, general information derived from the Task Force survey is needed to provide detail to existing published information and to shed light on t h e u m of all lsvelrr of force by law enforcement officeri ia New Jersey. The Task Force recognizes that although complete and accurate information about police ure of firearms is l 8 The reported number of calls for service is t h o u g h t to under represent actual police activities and citizen contacts. For example, aome departments report self initiated activity while others include only those activities for which an officer was dispatched in response to a third party. 26 t _. of critical importance, it alone is insufficient to properly address the entire range of issues raised by law enforcement's use of force. It is equally important that accurate and complete information be available regarding police use of less than deadly levels of force in the course of exercising their public safety responsibilities. In 1987, the New York State Commission on Criminal Justice and the Use of Force drew similar conclusions. research focused on deadly force, the "Noting that most [New York] Commission decided to ask 'broader questions' about the frequency and nature The New York Commission found of 'less than deadly force."19 that not only did police use deadly force infrequently, suggesting that the discharge of a weapon occurs perhaps once in a decade in smaller police agencies, but almo concluded that police use of any force is rare. The survey conducted by the N e w York Commission indicated that police in New York State used force, primarily "pushing, grappling or wreatling with an unruly citizen," in approximately 5% of all arrests and in less than one-tenth of one percent of all police citizen encounters. 2 0 In 1987, the Division of Criminal Juotice conducted a s t u d y of civil liability raits filed against New Jersey law enforcement l9 Fischer, E. (ed) 1987. New York Panel Finds Abuse of Forceby Police-NotSystemic. InCriminalJusticeNewsletter , 18(11). 27 officers2I. This, effort was undertaken for the purpose of "defining fut-ure efforts in training and policy formulation as they relate to the issue of police liability.n22 During 1985 and 1986, a total of 576 suits were filed under state and federal law. Of these suits, assault and battery (43%) was the most commonly cited cause of action. Generally, the use of force by law enforcement officers occurs infrequently. is not always so However, there is some suggestion that it infrequent enforcement officers. an event for individual law The ReDort of the IndeDendent Commission of the Los Anaeles Police De~artrnent'~ organized following t h e Rodney King incident on March 3, 1991, looked carefully at the use of force by that police department. The Commission relied on a Los Angeles Police Department requirement that all incidents involving police use of force beyond a firm grip be reported by the officer involved. a There are 8,450 sworn law enforcement officers in t h e Los Angeles Police Department. 0 During a 51 month period, 6,000 officers (71%) reported that they had used force greater than a firm grip. 0 Of thora 6,000 officers, two-thirds had used force lese than 5 t h e s during t h a t 51 month period. However, 63 (1.19) officers filed 20 or more use 21 Fisher, W.S., Kutner, S . L . and Wheat, Civil Liability of New Jersey Police Officers: Criminal Justice Quartcrlv. 1 o r 1 1 . 22 J.I. (1989). An Overview. Jbi4. at p. 45. 23 Christopher, W O I Asguelles, J.A., et al. (1991). Report of the Independent Commission on the Los Anueles Police DeDartment. 28 of force reports for that same time period. f Understanding that the self reporting of incidents involving force may under represent the actual number of force incidents, the conclusion remains that a small proportion of officers are involved in a disproportionate number of force incidents, Despite the infrhquency with which the large majority of police use physical force, especially deadly force, public perception regarding such frequency is certainly important. recent Gallup A conducted in March 1991, about two weeks after the Los Angeles incident, provides timely information w i t h regard to the public's perception of police brutality. The national poll involved telephone interviews of 1,005 randonly selected adults. The following information was obtained from this poll: " H o w often do you think incidents like this [Los Angeles] happen in police departments... Freuuency across the Countrv Very frequently Somewhat frequently Not very frequently Not at all No opinion o o 24 frequent 2 n Your Local Area 22% 46% 27% 2% 3% 5% 15% 45% 32% 3% More than two-thirds (68%) of respondents believe that incidents such as that in Los Angeles occur very or somewhat frequently across the country. Only one-fifth (201) of those polled report that incident8 similar to that in Los Angeles occur vory or somewhat frequently in their local police department. (1991). American8 ray police brutality not locally. GaïiuD Poll News Service, 55(42b). Gallup, A.M. - but 29 AS is evident, respondents believe police brutality is a rather frequent occurrence nationally, but view it as a far less pervasive problem in their own police departments. In f a c t , almost one of every three (32%) respondents stated that brutality never occurs in their .local police department. Another way to aksess the frequency of police brutality incidents is to question respondents about their personal knowledge of people who have been mistreated by the police. The Gallup poll asked respondents if they knew anyone who had been mistreated by the police, if a member of their family had ever been mistreated by the police or if they, themselves had been mistreated. ! The following are those responses: Personal Knowledge of Individuals Mistreated or Abused bv Police Yes Know someone Family member Respondent No 20% 80% 8% 5% 92% 95% While one of every five (20%) respondents report knowing someone who had been mistreated by the police, less than half that number report that a family member had been mistreated and only one of every 20 respondents report that they themselves had been Metreatad A8 ha8 become apparent throughout the Task Force effort, defining police brutality as a general concept is deceptively difficult, and the concept of brutality to which the respondents of the Gallup poll are answering is no less nebulous. Almost 25 years ago, Albert Reiss, a distinguished professor of sociology 30 at Yale University, noted that "What citizens mean by police brutality practice covers that the full degrades range their of status, police that practices.. . a n y restricts their freedom, that annoys or harasses them or that uses physical force that is frequently seen as unnecessary or unwarranted. n 2 5 Like the matter Òf- brutality, even defining just what p o l i c e use of force entails in general can be quite difficult. However, while all would agree that brutality on the part of police officers is conduct which should be univereally condemned, use of force is at times both necessary and acceptable. To evaluate use of force, it is necessary to understand the situation within which it is used. Appropriateness with regard to the use of force at all, or with respect to the degree of force employed, can only be determined by an analysis of the conditions and facts evident at the time it is used. Any effort to make such assessments necessarily requires the availability of accurate and current information about police use of force in general. A threshold barrier to accumulating such information is the very way in which uue of force is to be operationally defined. It must be done in a way which allows for necessary information about infrequent events to be accurately reported. A t the same time, howaver, it cannot be defined in such a way as to require unnecessary reporting of all physical contact between police officers and citizens. For example, doe8 reportable use of force 25 Rei& A.J. (1968). Police Brutality, Answers to Big Questions. TRANS-actioq, S ( 8 ) pp. 10-19 31 include handcuffing procedure in arrestees, which most police is a standard operating or departments, should the classification of use of force be limited to incidents which surpass a certain physical threshold and take place in an atmosphere of confrontation? The police alone .in our society bear the responsibility to use force when force is necessary to insure the public safety. We expect the police to use force. the use of force by police It is their duty. officers is dependent However, upon an assessment of the necessity of force given specific situations. To insure that officers are properly trained and familiar with a wide range of force techniques, and to be sure that they are cognizant of those situations in which force is appropriate, a key portion of the Police Training Commission approved basic course for police officers is devoted to this topic. O The use of force unit "presents New Jersey l a w s pertaining to the use of force as it applies to a police officer's duties. The trainee will be g i v e n situations where force, including deadly force, may be The trainee will necessary and legally justifiable. identify appropriate responses in each situation. The unit al80 cover8 the consequences that might result from the d r u s e of force.n26 The public al80 generally recognizes that use of force by police officers ir at times necessary and acknowledges that there are situations in which they approve of its use. Social Survey, conducted annually by the The General National Opinion 2 6 Division of Criminal Justice, Police Training Commission (1990). Basic Course f o r Police Officers. 32 Research C e n t e r 2 ' c o n t a i n s a series of q u e s t i o n s designed to aa8C)ns p d 1 i - c p e r c e p t i o n of p o l i c e uac of f o r c e . Respondents w e r e aakcd "Are t h e r e any s i t u a t i o n s i n w h i c h you would approve of a policeman s t r i k i n g an a d u l t , male c i t i z e n ? " In addition, r e ß p o n d e n t s were a sk e d i f t h e y would "approve of a policeman s t r i k i n g a c i t i z e n u n d e r c e r t a i n circumstances." A t t i t u d e s Toward Police Woe of Force "Are t h e r e any situations you can a g i n e i n which you vould a p p r o v e of a policeman s t r i k i n g an a d u l t rale c i t i z e n ? " Not S u r e Xlen 70% 25% 5% w a s a t t a c k i n g an officer with his fists 92% 6% 2% was a t t e m p t i n g t o 74% 21% 5% s a i d obocene t h i n g s t o police officer 12% 84% 4% war baing quertionod i n a murder caro 11% 86% 3% Would you a p p r o v e of a polieo t r i k i n g a c i t i z e n who: e a c a p c from c u s t o d y Ur. ' of forco by p o l i c e o f f i c e r 8 i8 of coune n o t necessarily i n a p p r o p r i a t a bohavior. A8 the rurvey nuke8 clear, hawever, varfour rituationa uabody a strong presumption f o r o r against t h e appropriatana88 o f polie. ure of forca. 33 U88 of f o r c e can o n l y be judged in the context of the situation in which it is employed. For instance-, during 1990, 5,214 person8 were arrested for assaulting a police of ficer2*. Obviously, circumstances such as these m y result in the need for police officers to use force themselves. Force is but one technique among many available to police as they work to insure the public safety. While most would agree that force is not the tactic of choice when alternatives can be safely utilized, ita ure nonetheless is of paramount concern to law enforcement and the public in general. In an effort to obtain information relating specifically to use of force in New Jersey, the Taok Force designed and administered a survey to develop bareìine information which would arsiet in our understanding of the nature of this complex irrue in our state i . POLICB/CITIZEM CONTACT MID USB OP POR- smvm Puroose As would be expected, the Tark Force initially sought information about use of force by law enforcement officer8 in N e w JeIley from existing, routinely collected data. It was immediately evident that existing information, ruch as criminal indictnnt8 alloging u80 of exceriive force, would provide information portaining to but one small segment of the general 28 Data were extractad from the Computerized CriPPinal ñirtory data bar. and include the numbor of u r r r t incidents involving a Charge of 2C:12-16(5)(a) which rtatar that a person ir guilty of aggravated arrault if he c o d t r a rfmpla arrault upon "any law-8nforcement officer acting in t h 8 performance of hi8 dutirr while i n uniform or exhibiting evidonce of hir authority." 34 issu8 of police use of force. t Further, existing data was of little value in aiding o u r understanding of the context within which force occurs in this state. As a result of limitations of these existing data, the Task Force developed a survey instrument designed to collect general use of force data for,a three year period of time: 1988, 1989 and The survey consirted of four very baric items: 1990. total total total total number number number number of of of of calls for service; incidents in which force was used; use of force complaints; and firearmr dircharqer. The survey war mailed to 543 law enforcement agencies in New Jerrey. These agencies include municipal police departmentr, sheriff's offices, college police, county police, park police and other law enforcement agencies ruch ar the Division of State Police, Port Authority and Palisades Park police. A total of 502 police department8 responded to the r u m m y resulting in a rerponre rate of 92%. Rerpondentr conrirted of 502 law enforcement agenciei. Collactivoly, thoro agoncier include 95% of the rworn police officozr ia Hew Jorray and ara rerponribh for providing police a o ~ i c o rt o 95% of thir rtate'r population. Ia ordor to acknawldgo tho fact that tho nature of policing difforr ar a function of tho characterirticr of tho area and population baing policd, rurvey rorulto 35 U. grouped by the characteristics of the employing municipality or as nonf \ municipal police agencies. These categories closely resemble those contained i n Unifofin Crime ReDorts: State of New Jersev 1990 which are described as follow: Urban 100+ -. Urban police departments with 100 or more police officers located in or near densely populated areas with extensive development Urban < 100 Urban police departments located in or near to densely populated areas with lese than 100 officers Suburban Suburban police departments located in predominately residential areas without regard to the number of police officers Rural Rural police dopartment. located in relatively rmrrll communities without regard to the numbor of police officers Non-Municipal Sheriff, county, colloge, state (including the New Jersey State Police), and other law enforcamant agencies t h a t do not have primary municipal law enforcement jurisdiction Calls f or Service In general, the majority of law enforcement agencie8 were able to provide data regarding the numbor o f calls for senrice handlmd by thoir dopartment on an annual basis. 29 It muat be anphamizd, ~OY.VOZ, that not all doputmant8 included all activiti.8 in thoir annual totals. 29 S o w departwntr include s e l f Polic. dopartnnnts - t o k t t o r able to provide recent infomation requested in the survoy than thoy were information for prOviou8 y o u r . For oxample, 45 ( 9 . 0 a ) rerponding doprrtni.nt8 were unablo to provido tho n u b a r of 1990 calls f o r 80wice a8 comparad t o t h e 89 (17.7%) doputni.nt8 unable to provide 1988 data. 36 initiated activities as calls for service. For exrnplc, every time an officer stops a car and issues a motor vehicle summons, some departments include that as a call for service. Others, however, include only those activities f o r which an officer was dispatched in response to a third party request. While the types of calls included in'these totals are not consistent from department to department, and thus under-report the total number of police/citizen encounters on an annual basis, they do accurately measure operationalized calla for service as defined by individual departments at this time. What ia made clear is the absence of a consistent definition, among departments, of those units of police activities and citizen contacts which should be routinely recorded within individual agencies. The following table contains information regarding calls f o r service as reported by survey respondents. 37 CALLS FOR SBRVICB 199io DeDartment Avtrcrsc Remonse Total Urban 100 + Urban < 100 Suburban Rural Non-Municipal .* 2,923,165 I, 187 399 2,586,275 5 2 1 544 224 82 , uxua '50 502 8,666,934 ResDonse TotaL Urban 100 + Urban < 100 Suburban Rural Non-Municipal 27 119 224 82 Total DcDartment s for ~ervice3O 27 119 Total DeBartment u Total Calla for #.mice, for servicc 17,264 8 Averaae A! 2,983,976 1,180,688 2, SOS, 4 9 0 491,611 Jl&u&u 110,517.6 9,921.7 11 9 189 2 5,995.3 28.666.7 so2 8,595,103 17,121.7 RerDonre Total Urban 100 + Urban < 100 Suburban Rural Non-Municipal 8 108,265.4 9,978.1 11,545.9 6,630.3 28,651. O 27 Call I f o r Service 224 02 2,923,145 1,151,917 2,453,145 463,947 1p r,393.610 502 8,303,764 119 Averaae 108,264.6 9,679.9 10,951.5 5,657.9 27,872.2 16,704.7 more precirely dofined ar "police activity incidoatr," a r o conriderad tho best available mearure of Caîlr for 8ervic8 were artbated for tho88 rccrponding departmont8 unablo to provide therm data, The a r t h a t a r were bared on calla for r e m i c e , agency clarrificationa and number of police officers and account for only 5 , 7 8 of the total 1990 calls for 8 . N l C 8 . 38 the volume of police/citizen contacts. Although specific activities which constitute a Call for ServiCe are not consistent from department to department, calls for service nonetheless provide a useful basis for assessing the rate of use of force incidents as a proportion of police/citizen contacts. ' The number of calls for service has remained relatively stable over the three years for which data were collected. When these agencies are grouped by category, the average number of calls for service in 1990 range from 6,630 in rural police department8 to 108,265 in urban police department8 employing 100 or more off icerr . ' Almost half of all calls for service (47.6%) are handled by urban police departments. Use of Force Incidents The Task Force generally agrees that data regarding use of force incidents are not complete and are of only marginal utility. Specifically, only about half (54.6%) of responding departments provided any information in response to this item. In addition, the data fluctuates rather extremely within similarly grouped departments suggesting that a use of force incident ir not defined, reported or collected in anything even approaching a standardized manner by responding departments. Derpite the rhortcodngr of the data, it has been included in the report. ure thea. Hwever, caution niurt be exercised when attempting to data to m k e m y generaliz~tionrregarding use of force ar a rtrategy or tactic q l o y e d by police agencies or individual law enforcemint officrrr in this state. 39 INCIDENTS USB OF FOR- 1990 DeDartment Urban 100 + Urban 100 Suburban Rural Non-Municipal Total Responding DeDartments U s e of Force 5 43 . 105 ” 44 Jncident s Averaae 2,116 423.2 4,207 97.8 31.1 7.7 41.8 3,264 339 - II u25 228 11,222 49.2 Uoe of Force Inc idents Averaae 1989 DeDartment Urban 100 + Urban < 100 Suburban Rural Non-Municipal Total D8Daflm cnt Urban 100 + Urban 100 Suburban Rural Non-Municipal Tokl Responding DeDartments 5 2,018 38 4 ,350 100 2,863 403.6 114.5 28.6 43 314 A 1_,699 217 10,930 50.4 Responding D e D a m e n tQ Uoe of Force Incidents Aver aae 4 1,872 3,534 35 88 38 7.3 54.0 2,680 468.0 101.0 30.5 251 6.6 2 1,299 50.0 19 1 9,636 50.5 On average, incidont8 of u80 of forco have ranmined abort conrtant ov8r tho three years for which data wore col1.ct.d. ha8 b o n notod in rorponrer to previously reportd survey itomr, u r b m poiico departmont8 um. force moro frequently than any other categorized group. A. 40 0 Urban police departments with 100 or more sworn officers, use force more than four times as often as-urban police departments with less than 100 officers and about ten times as often as nonmunicipal law enforcement agencies. Excessive Use of Folrce As with the preceding item, the Task Force is not as confident in the responses to this survey item as it is in survey information regarding calls for service and firearms discharges. As was true for calls for service, albeit to a lesser degree, there is not universal agreement as to just what constitutes a reportable complaint of excessive force. For example, some departments reported only thoae complaints for which formal charges were filed, while others reported all much reports filed by citizens regardless of disposition. In addition, fewer departments were able to respond to this item than calls for service. Specifically, 15.5% of rerponding departments were unable to respond to this survey item. The absence once again of a consistently accepted definition of excerrive force complaints makes detailed analysis of these data quite difficult. Differing rates among departments could be either a reflection of the extent of thir problem in an individual agency or could simply be a function of varying reporting or record keeping procedures. 41 BXCESSfvB USB OF FORCE 1990 DeDartment Urban 100 + Urban < 100 Suburban Rural Non-Municipal Total DeDartment Urban 100 + Urban < 100 Suburban Rural Non-Municipal Total \ Responding DeDartments ., Force ComDlaints Ave ra se 19 102 185 73 562 123 134 60 45 189 0.8 4.2 424 1,068 2.5 Responding Departments Force ComDlaints 18 99 179 70 513 91 244 30.0 1.2 0.7 Averaue 29.0 1.3 0.6 131 101 35 - 0.5 5.4 2.5 1,024 411 1988 - Renponding PeDartmcnt Urban 100 + Urban < 1 0 0 Suburban Rural Non-Municipal Tokl 17 92 171 66 Force ComDla ints 472 Averaue 22 28.0 1.1 0.5 0.3 9p 122 2.9 390 801 2.1 101 79 ûverall, compïaintr of excerrive ure of force have changed little over the three years for which data were collected. Complaintr of excerrive use of force have increrred proportionately more among nonmunicipal law enforcement agenciar than municipal police departmentr. 42 Excessive use of force complaints, as operationalized by responding police departments occur infrequently. During 1990, more than one of every two (52.6%) allegations of police use of excessive force are made against the largest municipal police departments in New Jersey. In urban 100+ police departments, excessive use of force complaints ranged from 2 to 87 during calendar year 1990. Firearms Discharue Activitv Of a l l the survey data collected, the Task Force considers information pertaining to firearms dircharges to be the most valid and reliable. More than 9 2 8 of responding departments were able to provide these data. Furthermore, there is little confusion as to what constitutes the discharge of a weapon. The survey instrument defined a firearm8 discharge as any non- training firearm discharge incident by law enforcement personnel, including on and off not there was an injury. accidental or intentional, whether or The chart which foìiows includes the total number of firearma discharge incidents reported for a three year period of time. I . 43 FIREARXS DISCHARGE ACTIVITY 1990 7 DeDartmen t Urban 100 + Urban < 100 Suburban Rural Non-Municipal Total Responding DeDartments Firearms Discharge Jncidents 21 112 104 24 16 4 208 Averaae 5.0 0.2 o. 1 73 47 - -ie 0.4 - 460 167 0.4 0.1 3989 Denartment Urban 100 + Urban < 100 Suburban Rural Non-Municipal Total Responding DeDartments Firearms Discharge Jncidents Averaae 92 21 26 4 20 110 203 73 Total La88 0.1 0.1 0.7 A 11 - 457 174 0.4 Responding Firearms Discharge Incidents Avcraue l&suawm Urban 100 + Urban 100Suburban Rural Non-Municipal 4.6 0.2 19 109 193 103 12 5.4 2s 0.1 0.1 * 67 2 A 22 0.5 - 433 164 0.4 than .1 The overall firearm dircharge rat8 has remained conrtant over the three years f o r which data were collected. 44 o c o On average, each police department in New Jersey discharged a weapon less than once during 1990. In fact, there was only about one firearm discharge for every-three departments in New Jersey. More specifically, only urban 100+ police departments discharged weapons frequently enough to be meaningfully measured on an annual basis. Each urban'100+ police department discharged a weapon on approximately 5 occasions in 1 9 9 0 . In fact, these departments are rerponeible for almost two of every three (62%) firearm8 discharge incidents in New Jersey during 1990. o Of the 21 urban departments with 100 or more sworn officers, the number of firearms discharges in 1990 ranged from O to 48. The survey conducted last spring by the New Jersey Task Force on the Use of Force yielded results very similar to those found in 1987 in New York. The New York Commisrion on Criminal Justice and the Use of Force contracted with Dr, Elizabeth Croft, School of triminai Justice at the Rochester Institute of Technology, to study "the frequency and nature of lass than deadly force." This study included 1,762 incidents of use of force by police officers in Syracuse and Rocherter during 1984 and 1985.31 From these data, Dr. Croft concluded: e Police use of force is infrequent, occurring in approximately five percent o f arrest8 and in less that one-tenth of on. parcent of all polfce/cititen contacts . 31 Naw York Stat. Commirrion on Criminal Justice and the Use of Porce (1987). peDort to the Governa. 'Albany, New York. Of the 1,762 use of force incidents examined in this study, five involved police officers shooting at persons. The type of force most commonly used was physical restraint, that is, pushing, grappling or wrestling with an unruly citizen, as opposed to beating with fists or striking with nightsticka. The New York data were collected from just those two departments, Syracuse and Rochester, which require officers to report all use of force incidents. To provide for some comparisons with the New York data, data from New Jersey is limited to just those departments providing 1990 data for all items of interest; calls for service, excessive forcei2 u88 of force and use of By collecting both general and exceasive force information, the Task force sought to distinguish those i incidents in which sllegationr exist that police officers used force beyond that which was appropriate and necessary. In New Jersey, police use force infrequently. It is estimated that during 1990, New Jersey law enforcement officers used force in about one-half of on8 percent of reported calla for service. The data collected by the Task Force suggest that use of force by police officers does occur and that even police officers themmaltnr ackaowldge that at timas this use of force may be 32 In ord8r to draw coinparison8 betwe8n the s u ~ e y s ,only those New J8rs.y daprrtwntr providing responses to all three items; Call8 for 8 a ~ i c 8 ,use of force and u18 of excessive force for 1990 are^ included in this particular analysirr. It should be noted that these 198 agamies can not necessarily be considered reprarentativa of all law enforcament agencies in New Jersey. N8W York's use of force srmple ir also not random. 46 excesrive. i- t Although accurate quantification of the actual m o u n t of excessive force incidents is not possible with available d a t a , the Taik Force nonetheless believes that use of force occurs infrequently when compared to the total number of police/citizen contacts. It further believes, however, that the quality of the data pertaining to Uge of force must be improved if definitive conclusions are to be made. RBCO)O(LWDATIONS I. All law enforcement officer8 mhould be required t o report, and all lav enforcement agencies should be required t o c o l l e c t information about incidents involving use of force. After designing and mailing a survey questionnaire to every police department in the state requesting information pertaining to calls for service, use of physical force, complaints of excerrive force and fireanns discharge incidents, the Task Force was imprerred with the willingness of police departments to provide this information. The suwey, however, made the Task Force aware of both the abrence of a standard definition for these activitier and a rtandard mechanirm for the reporting and collection o f thir vital information by law enforcement agencies in N w &tray. II. A rkndud oprational dafinitfoa of ura of forca rhould k developad which Fncludas threrhold. bayoad vhich bidant. of force m r t k r8port.d by police o f f i c u r . Undorrtanding that use of forca ir dafined differently from departmant to department, the Task Porco r@comendr that a 47 standard definition of what constitutes use of force for reporting purposes be developed. The Task Force is also aware that use of force encompasses a broad range of police activities, from handcuffing arrastees in compliance with departmental standard operating procedures to discharging a weapon. The Task Force believes that-a threshold barrier for reporting purposes is ! necessary to permit the reporting of necaruary information about infrequent events without burdening police officers with a requirement to report all incidenta of phyaical contact with civilians. 111. infomation pertaining to caqplaintr of excesrive force raceiveci by l a w enforcement agencie8 as dercribeâ the .Internal A f f h s Police and Proc asa chapter of t h e pollice Wanaoemnt Ihnoa be uiatrineci at the law enforcement agency. p While the Task force underrtandr that police use of force is an acceptable and at timer necerrary tactic during confrontations with citizens, it does acknowledge that there tactics are sometimes used unnecessarily. IV* Tha Tark Porco baliev88 that roporthg and collecting information pertaining to u m of fore8 at th8 department level is 33 “Internai Affair# Policy and Procedur8, a Police Management Manual, Chapter 5 , 1991. 48 but a first step. This information should be provided to the county prosecutor as well as being utilized at the department level. The county prosecutor is already required by statute to submit an annual report to the Attorney General. The c o u n t y prosecutor should include in this annual report a summary of use of force incidents ~ r a l countywide basis. Although firearms discharges are to a large extent i n c l u d e d within the broad spectrum of use of force, The Task Force believes that deadly force is of much importance that it should be included as a separate item for external reporting purposes. V. c d t t w of criminal justice profeasionals should be appointed to: identify specific itof information to be collected by every law enforcement agency in blew Jarsay, operationally define those itvhich must be reported, design i a t h d i to assist l a w enforcsiant agencies to collect this information and develop statwide guidelines for the utilization of infoxmation collected h t h within the individual police department and by the county proitmator. A The Ta8k Force strongly believes that information about use of force is of paramount importance to law enforcement agencies themselves. The Task Force suggests that agency use of these data will permit early identification of police officers who might ba adsusing force and thus require intervention such as remedial training, counseling or disciplinary action. In addition, tho Tark Force believe8 that these data might also be used to identify citizens who file a disproportionate number of unfounded oxcorsivo use of force complaintr. 49 The Task Force is aware that t h e initial barrier to obtaining valid and reliable information about use of force in New Jersey is a l a c k of standardized definitions, r e p o r t i n g procedures and data collection methodrr. The Task Force believes it would be quite useful t o develop a precise definition of police service unitsqw well as operational descriptions of other force activities. The Task Force has taken note of the definition of force utilized by the Lor Angeles Police Department for reporting purposes and believes it can serve as a useful starting point for this committee. "The Los Angeles Police Department guidelines regarding use of force identifies five levels of force; (1) verbalization; (2) firm grip; ( 3 ) compliance holds; (4) interamdiate force, including the use of the baton, kicks, swarm, chemical spray, saps and taser; and ( 5 ) deadly i force, including tha modified carotid hold and firearms. 34 I* use of force report must be completed whenever an W "A D officer uses force greater than "firm grip" compliance.35 34 Chrirtopher, W:, Argueller J.A.r et al. (1991). R e D o r t of t h e IndeBendent Com~~usrron on t h e 7108 Anaeles Police -nt, p.. 26. 35 Jbi4. at p. 36. so CHAPTER TWO i S U C T I O N AND W N I N G OP POLICE OFFICERS In addressing issues related to the selection and training of law enforcement officers, the Attorney General's Task F o r c e on the Use of Force in Law Enforcement examined the following: The selectidn and screening process for law enforcement officers; 0 Basic and in-service law enforcement training; and internal affairs officer training. Existing New Jersey law, the laws of other states, and sumeys, reports and recommendations of variou8 law enforcement organizations were reviewed and analyzed to determine what changes, if any, should be recommended to improve law enforcement in New Jersey. The key factor in the delivery of police services is the individual police officer. A police officer is vested with conmiderable discretion in performing the many duties he or she Unlik8 many other m y be called upon to undertake. proferrionalr, the police officer ir expected to become involved in potentially confrontational rituationr and move them toward rerolution. In performing there varied duties and resolving confrontationr, the police officer ir authorized to use force when nacerrary. G i V m the importance of such authority, the use of prychological screening of police officers war examined as well ar the training provided in the area of ure of force. Police proferrionalism and community confidence in police are 51 enhanced if there are assurances that police officers are apptopriateiy screened and selected. Noting the importance of the internal affairs process, the Task Force reviewed the detailed guidelines , "Internal Affairs Policy and Procedures ,lt36 issued by the Attorney General this past s u m e r and considered the need for training\officers assigned to such a sensitive position. Ar a result of these efforts, the Task Force is issuing recommendations in each of the areas considered. In general, t h e s e recommendations pertain to: e Psychological screening for police applicanta; e Psychological testing to determine an officer's continued fitnerr for duty; e Basic training for law enforcement officers; o Mandatory in-service training for law enforcement officers; and o Selection and training policy for internal affairs off icers. Psvcholo~icalscrernins In order to accomplirh their duties, including mârntaining public ordor, providing copnnunity protection, and effecting U. arr8rt8, police officers are authorized to use force. polica officer8 dut'i.8, While entrusted to use force in performing their rafeguarda are necessary to eniuro th8 proper utilization of forc.. "Internal Affairs Policy and Procedur8s I Management Manual, Chapter 5 . 52 Police State law establishes minimum qualifications and criteria f o r the appointment of police officers. 40A:14-122, Pursuant to N.J.S.A. a person can be appointed as a police officer only if that person is: O a citizen of the United States; sound in body and of good health sufficient to satisfy the board of trustees of the police and firemen's retirement rystem of New Jer8ey a8 to eligibility for membership in the retirement system; able to read, write and speak the English language well and intelligently; and O of good moral character, and ha8 not been convicted of any criminal offense involving moral turpitude. Other than these very basic requirementr, there is no uniform criteria f o r screening and selecting police officers in New Jersey. -i Additionally, there is no u n i f o d t y in employment criteria for the various classifications of law enforcement officers, such as regular officers and special officers, because the enabling statutes were enacted at different times. Currently there is no statutory requirement that police candidates undergo prychological terting before appointment as police officer6 in New Jer8ey. Some municipalities, however, have individually ertablirhed requirements for such screening of polico officer candidates. While no rtatutory requirement e x i s t s for prychological rcreening of regular, full-time police officerr, B o J . S I A L 4OA:l4-146.10b(6) doar raquire that Special Law Enforcement Officer8 muat undergo the 8- prychological terting that i r roquired of all ragular police officers in the municipality in which they are appointed. 53 Special officers hired for a seasonal period by a resort municipality which requires i- psychological testing of its regular police officers are required by statute to undergo a psychological testing program approved by the Police Training Commission. In order to examine state requirements for psychological testing of police offiicers, the National Association of Directors of Law Enforcement Standards and Training conducted a national survey in 1986. As a result of that survey, 16 states were identified as having requirements for a psychological examination of police candidates prior to appointment as police officers. Fifteen of those 16 states originally identified responded to a Division of Criminal Justice survey conducted in 1991 to determine by what means or authority the prychological examination is required. In addition, another state was identified as having a prychological exadnation requirement. Overall, the Division of Criminal Justice survey revealed that: Eight states require prychological examinations through state law; Five rtates require psychological examinations through regulations issued by the state's police standards agency or conmisrion; and Three states, through 88lf-bpOred agency standards, hava atatewide practice of requiring psychological examinations. According to the results of another study partaining to psychological screoning, more than 50 por cant of the major police agencies, ( L e . agencies serving a city with a population over 100,000)-in the United States have a psychological screening process. 37 Several major law enforcement organizations recommend psychological testing before a person is appointed a probationary police officer. The Commission of Accreditation for Law Enforcement Agencies, Inc., and its four major law enforcement executive membership.aesociations, the International Association of Chiefs of Police, the National Organization of Black Law Enforcement Executives, the National Sheriffs' Association, and the Police Executive Research Forum, issued a mandatory standard for all police agencies on psychological testing. Standard of the Commission's voluntary accreditation program 32.6.6 directs that: An emotional stability and prychological fitness examination of each candidate be conducted, prior to appointment to probationary rtatus, using valid, useful and nondiscriminatory procedures. C o m e n t a m : Law enforcement work is highly stressful and placer o€ficers in positionr and situations of heavy responsibility. Psychiatric and psychological asresrments are needed to screen out candidates who might not be able to carry out their responsibilities or endure the rtrerr of the working conditionsO3* The International Amrodation of Director6 of Law Enforcement Standards and Training (UDLEST), an association conaimtfng of directorr of the statawide POST (Police Officer 37 Bennett, L.A. (1990). The Untapped Potential of Psychological Arseismentr, The Police Chief M a u I p* 231, (February 1990). 38 S t a n m d r for w Enforcement AuU)ciag I Commission of Accreditation for L a w &nforcemcrrnt Agenciar, Inc., ( 1 9 8 8 ) , p. 32-8 Standards and Training) agencies, al80 reconanends psychological screening in its Model National Training Guidelines. In its commentary for this recommended standard, IADLEST noted: psychological assessment is necessary to screen out candidates who may not be able to carry out their l a w enforcement responsibilities or endure the uniquely stressful yorking conditions or who lack the necessary emotional stability 39 A Based on these findings, the Tark Force recommends that legislation be proposed mandating p8ychological examination of a candidate before appointment as a police officer. The legislation should designate the Police Training Commission (PTC) as the agency to establish standard8 for such testing. Moreover, to ensure that psychological testing achieves its desired purpose, the Tark Force believes that rtandards should be established that are conrirtent with the accepted standards of the American Psychological Armciation. While the Tark Force believer prycho~ogicaltesting should be utilized by police department8 in attempting to employ only those persons who are able to meet the demands of this profersion, such testing rhould not be ured a8 a device to - excluda applicant8 becauro of cultural diV.rrity, gender. race, or A prychological recommendation rhould not be the s o l e banir for a hire or no hire decision. Rather, a recommendation b a m d on pmychological tasting rhould be only one criteria among other r a h c t i o n critaria. 3g National Amrociation of Diractors of L a w Enforcement Standard8 and Training, Draft of Modal National Training Guidelines. 56 In addition to psychological screening f o r employment of police officers prior to appointment, the Task Force considered psychological fitness-for-duty testing among veteran police officers, with cause or reason. Psychological testing for fitness-for-duty is to determine whether the individual officer remains qualified to,be a police officer. Generally, if an officer's behavior poses a r i a k of danger either to the officer or others, there could be sufficient cause or reason for such testing. Procedures to specify when testing takea place would be necesaary. 4 0 Psychological testing would aid in identifying potential problems and determining appropriate courses of action. However, policies and procedures must be in place not only to specify when testing ehould take place, but also to ensure that test results are appropriately utilized. Caution must be exercised to ensure that police officers are not arbitrarily or unfairly subjected to psychological testing procedures. There guideline8 would provide direction concerning the action to be taken ar a result of the psychological terting. Appropriate actions could range from a raconmi.ndation for counseling to a recommendatfon for a new asrigawat or aven dismissal. Tho noad for psychological testing to assess an officer's o Factor8 indicating a need for fitness-f or-duty psychological testing would inchada, but not necessarily be limited to, m g or alcohol .bulle, obvious emotional disturbance, violence or throats of violence, abur8 of authority, or a dirproportionately high number of citizen complaint8 against an off icer . 57 ability to appropriately perform assigned duties is illustrated by two court decisions. In Bonsiunore v. Citv of New York41, New York City was found liable f o r a shooting by a police officer who was mentally disturbed. On December 20, 1976, an off-duty police officer shot his wife with his off-duty revolver which he was required to carry 24 hours a day. The Second Circuit Court of Appeals upheld a jury verdict of $425,000 against the city on the ground that the city was negligent by failing to adopt adequate mechanisms for detecting officers who are mentally or emotionally unfit to carry firearms. In the 23 years Bonrignore was on the police force, he was never given a psychological examination. In Hild V. Bruner,12 the New Jersey municipalities of Andover and Newton were found liable for a total of S40,OOO in connection with a civil rights action brought against the two municipalities and three named police officers. The lawsuit charged that the officers had falsely arrested two people who were injured as a result of a struggle and the arrests. The court noted in its decision that tho jury reasonably could have inferred that the failure of the town of Nowton, N.J., "to conduct roma kind of psychological tart8 of its police officer#, at h a r t after 1975 (when according to expert testimony, such teating became widely accepted), constituted gross negligence." againrt Andover, N.J.t Concerning the verdict t h 8 court said that municipal officials -ore v. Cftv of New York 921 P.SUDL 394, 396, 398 (S.D. N.Y. 1981), .ff'd, 6 8 3 &2d 635 (2d Cir. 1982). 41 4 2 U d v. 8( D . N . J . 1980). 496 SUD^ a t 99 (citations omitted) 58 knew that the named police officer had "aggresaive tendenciesiiin the past. Moreover, based on testimony that the Andover p o l i c e commissioner did not know whether police officers underwent psychological testing, the jury reasonably could have inferred that these facts indicated gross negligence on the part of Andover Recognizing the significance and importance of a police officer's ability to respond appropriately to the various situations which may arise in police work, the Task Force recommends that police departments develop and implement a policy concerning psychological testing of regular police officers. This policy should be clear as to when psychological testing of veteran officers is warranted. The Task Force further recommends that the Division of Criminal Justice bring together law enforcement representatives and experts as needed to develop a model policy for the usa of in-service psychological testing. RBC-TIONS VI. VII. ïagislation should be proposai mandathg psychological exmination of a canâidate before appointment am a policm o f f i c u . Th8 lagislation should designate the Police Trriniag C d i m i o n (E) as the agency to 88tablirh atrnAlrds for such t8stbg. Polico dapartmnts should k encouraged to develop and iæplaisnt policy concerning psychological testing of rrgillu police officerr. The departmental policy rhottld k clear as to when pmychological testing of V 0 t m r . n offfcu8 is w u r r n t d . ?ho Division o f C r i d a a l Jurtice should bring together a body of cup.-. to d m l o p a rod81 pOliCy for th. \II. O f hservice p.ychologica1 testing. 59 Use of Force Traininq The various'types of training for law enforcement officers within the state were considered by the Task Force. Of particular concern was that training provided in the area of use of force. Both basic and in-service training for police officers were reviewed. In reviewing basic training for poiice officers in New Jersey, the Task Force found that, in 1985, the state adopted t h e Performance Objectives System of Training (POST) for the compulsory Basic Courre for Police Officers. The POST program relata8 apccific training iesrons to activitiar and tarrkr performed in t h e field by police officers to ensure the relevance and appropriatenesa of police recruit training. The Baric Course for Police Officers includes the following subject8 relating to the uae of force: police community relations, patrol concepts and agency training, training unarmed defense, baton training, firearms . In 1985, along with introducing th8 Performance Objective Syrtem of Training, tho u80 of forco curriculum war raviaed and specific porforiarince obj.ctivo8 w8r8 ortablirhad to comply with tha U.S. Suprona Court doci8ion in T.nn88rae v. G B U ~ P I ; 4. 3 curriculum w . 8 The ia turn, adopted for u r d in all police academies rtatowído ia conjunction with tho Attormy Genara1 Directive on the of Force. v. GQIILPE 43 L.Ed.2d 4 7 1 U.S. 1, 105 $ * C t * 1 6 9 4 , 85 1 (1985). 60 r; In 1989, the use of force curriculum again underwent a major -- revision pröcess. T h e revised curriculum, approved for use beginning March 1990, provides not only current, relevant performance objectives, but also a comprehensive guide for t h e academy instructor on the instruction and application of t h e of force laws. The& use instructional units provide clear teaching concepts to explain the laws, rather than just reiterate them. Also, sbulated situations, often based on actual court cases or real life examples, were incorporated to aid the trainee in understanding the concepts taught. In general, curriculum revisions were made to reflect current training techniques on use of force, to examine the legal justifications of force as rtatutorily required in Y.J.S.A. 2C:3-1 pt sea. and leading court decisions on the use of force, and to introduce the trainee to practical conriderationr in determining the appropriate options to be ured in an encounter, with emphasis on the use of verbal persuasion ar an effective option and a useful method for the de-ercalation of force. Some specific features of the curriculum follow. Concept of Rearonablenerr. In t h i s segment, the definition of reasonable force is dircursed, along with tho critaria for determining reasonable force. trc~ïationof Force. This regment covers the four levelr of force (conrtructive or verbal, phyrical, mehanical and deadly force), ar wall as the Mportance of attmpting lower levelr of forca to de-escalate the n o d for A higher level of force. The usa of conrtructive or verbal force is emphasized as an often effective law onforcement rtrategy, as well ar the option to attampt contaimant until backup officer6 can be rumonad. 61 (-- Force to Effect an Arrest. The use of verbal f o r c e again i,s stressed as an effective levei of force. The training curriculum makes it clear that an officer should develop a range of strategies for use, as conditions warrant, in matters where resistance is encountered. Deadly Force. Because of the serious consequences involved with this level of force, this training segment was designed to present a clear concept of when deadly foxtie would be justified. The officer is taught to considck less drastic alternatives when there is no immediate need to use deadly force. Use of Force Liability. A segment on liability is incorporated to emphasize the consequencer of the misuse of force, while also making it clear that an officer will have a qualified immunity if the force used is reasonable. Based on its review of ba8ic training, the Task Force found that police officers are adequately trainad in the Basic Course for Police Officers in the use of verbal techniques, various i t e m of defensive equipment, such as the uae of the baton, and i physical defensive tactics. Horeover, firearm8 training and requalification are adequately addressed through the Baric Course requirements and s d - a n n u a l requalification requirements iseued pursuant to t h o Attorney k n e r a l Directiv8. Poriodic reviaions made to the uae of forco curricula rclflect refinements in the law or in officer rtrateqier and techniquas. While t h i s Ta8k Force ir a w u a that curricula revirions are again underway to further strerr tho u18 o f conrtructive force and t o incorporate more verbal conmmication a8 a means of de-ercaïating a hortiia rituation, the Tark Force nonethelos8 r8c-ndr efforts to *rove that there ure o f force training continue in the future. While New Jerrey does have statutory provisions requiring 62 basic training f o r police officers, currently, there is n o New Jersey statute requiring that a police officer receive i n - s e n i c e training. While some police departments in the state require in- service training, many do not. Bergen County is one county that does require in-service training for ali police officers. For several years, that county has required that police officers complete 16 hour8 of in-rcrvice training annually. Statewide, the only required in-service training is for radar operations and firearms requalification. required in N.J.S.A. While annual firearms training is 2C:39-6y, an Attorney General Directive mandating semi-annual requalification augments the statutory requirement. The prescribed program established pursuant to Attorney General Directive consists of handgun requalification twice annually, under daylight conditions and night-firing conditions for handguns issued or authorized for use both on and off duty. The program also prescriba8 qualification requirements pertaining to shotguns, automatic weapons and 8d-automatic weapons for thore officers who are or might be required to carry an agency issued shotgun or an automatic or semi-automatic weapon in the course of their duties. The required qualification program aïs0 incltados guidelines for classroom instruction and training. Thir training, to be conducted twice annually, is to conrirt of inatruction in tha ure of force and an update of all reluvant policiar (atata, county and agency policier), rtatutes, and court deCi8iOn8.. Tho program alro raquirer law enforcement agencies to review remi-annually a l l of ita firaarma policie8 as 63 they pertain to warning shots; moving vehicles; removal of firearm fro& holster Or display of firearm; surrender of fiream; disposal of animals; Carrying of Weapons, on and off duty; consumption of alcohol; use of prescription drugs; and covert operations. To determine the status of in-service training nationwide, the New Jersey Law Enforcement Study C o ~ s s i o nconducted a survey of all 50 states. Survey results indicate that 26 of 50 states legislatively mandate in-service training, exclusive of firearms re-qualification or other skill-oriented certification, such ar radar or CPR, for police officerr. The amount and type of training varied from state to state. The mínimum number of hours required for thir training ranged from 8 to 40 hours annually. In addition to the 26 stator with mandatory in-service training programa, at loart nine other states have instituted voluntary in-service training programs. The curriculum content for there courrer, whether mandatory or voluntary, is generally optional or flexible. The rtato agency rosponaible for doveloping and adainistering polico standards ir generally rasponsibla for: davdoping and approving i n = r e ~ i c etraining progruu within th8 8t8t.0 I(.ruam i s an example of ono of tho80 stater surveyed that ha8 a mtatutorily mandatory in-roritice training requirement. in satisfying tho roquirod 40 hour8 o f in-somice training, no more than 16 hour8 of training can be dovotod to firearms training. Whil8 nfrrirrippi ha8 no itate in-iervice training rnandate, t h e 64 state's Police Officer Standards and Training Agency is cornencinq a-voluntary in-service training program to address the continuing professional development of law enforcement officers. This 40-hour annual program will be phased in over the next five years. Through its Standards for Law Enforcement Agencies program, the Commission of Accreditation for Law Enforcement Agencies, ïnc. and its member organizations, including the International Association of Chiefs of Police, the National Organization of Black Law Enforcement Executivea, the National Sheriffs' A8sociation, and the Police Executive Research Forum, recommends mandatory in-service training. 44 The International Aesociation of Directors of Law Enforcement Standards and Training (IADLEST), in its Model National Training Guidelines, has issued a similar recommendation. In general, these organizations recommend mandated annual retraining which covers firearms requalification, agency policy on the use of force, and the use of deadly force. The nead for continued firearma traiaiag to avoid civil liability for a violation of a parson's constitutional rights was highlighted by the U.S. Supreme Court in w o n v. Barr i S. 45 The Court r a i d that wh8re city policy maker# "know to a moral certainty" that thair police officers will be required to use firaarma to u r a a t floeing felons and fail to train the officers m,at 44 SOO 45 Canton v. Bar 50Ed.2d nota I , 33-7. 489 yes, 381, 109 sect. 1197, 103 808 ( 1 9 8 9 ) . 65 on the limitations on the use of deadly force, this could be characterized as “deliberate indifference” to a person’s constitutional rights. By extrapolation, this holding can be applied to the other force options, rruch as unarmed defense and baton tactics, because the use of t h e s e force options al80 can deprive a person of his or her constitutional rights. While firearms are the predominant weapon involved in use of force training, there are other skill8 and techniques a police officer has access to and which should be carefully considered when reviewing training requirements. verbal skills. One such technique is It is this skill which the police officer uses mort often. In conridering the type of in-service training needed for police officers, the Tark Force agree8 with a finding of the IACP/BJA National Law Enforcement Policy Center: “Civil rights litigation ham made it abundantly c h a r that law enforcement agencies have a rerponribility to ensure that police officers are adequately trained in the use of all weaponr which they are permitted to carry on and off-duty.” Police officers must be trained to rempond appropriately to the various types of situation8 they will oncounter on the rtreat. Therefore, the officaxa mart bo trainad in the usa of a variety of equipment and techniquam in ordar t o rorgond proporly to tha rituation at hand. A need for continuing use of force in-8antice training involving not only firearnu but othor waaponr ar well is 66 illußtrated by parkcr (' V o DlStrict of ~oïumbia.4 6 In this case, a jury found the diatrict liable for over $400,000 because it was deliberately indifferent to the officer's physical t r a i n i n g program. The court on appeal noted that the record supported t h e jury's determination that the officer reaorted to the u s e of his firearm to subdue ParJccr because the officer was unable physically to subdue Parker by less drastic means. Recognizing the significance of verbal skills and communications in conjunction with police duties, emphasis in police training throughout the nation i r being focused on development of a police officer's verbal skills. In every encounter an officer has with a citizen, whether related to a criminal activity or to a non-criminal activity, there is a verbal exchange between the officer and citizen. Over 90 p e r c e n t of the encounter8 between a police officer and a citizen can be skills are handled by verbal c o m m ~ n i c a t i o n . ~Communication ~ recognized as an affective force option for a police officer which, at time#, can b. more effective than other method8 ruch as baton or the firee~m.~* Proficiency in the use of verbal i r k i l l s as a forca option can bo acqufrad through training. A raconwndation i r r u d by th8 U.S. îhp4rtment of Jurticc 8upports 46 V. Dia trict of C o 'w I 850 L 2 d 708 (D.C. C i r . lose), W . d u r 489 tl,s. 1065, 109 S.Cte 1339, 103 &.EdoZd 808' ( 1 9 8 9 ) . " Thompron, G. J. and Stroud, M.J. ( 1 9 8 4 ) . R.dfr.ctinu ' * Ord.r* Verbal Jud O' B a v i o r w i t h WQ&. Clade, B. ( 1 9 9 0 ) . Now Uv8la of Lethal Force. 67 L a w and * < In its report, Etinc i n l e s of GO& this. Pol icinq49, the Department of Justice recornends that police departments incorporate in their in-scrvice curricula training in verbal skills and negotiation as a means of resolving confrontational situations. Due to the complexitie8 of encounters police officers may be involved in, it ir incumbent upon the officers to maintain proficiency in all types of skills and defenrive equipment. This is particularly true for verbal skills, those skills which police officers use most frequently. However, when officers graduate from the police academy, there is no mandated retraining or requalification to insure continued proficiency in thore skills. It i r axiomatic that prycho-motor rkills dateriorate when they are not exercioed. Officers lacking confidence in their skills in verbal cownunication, unarmed defanrive tactics or baton tactics have limited the force options available to them in rerolvinq an encounter. Officers confidant in such skills and tacticr may be able to rerolve the eacouatar by rerortinq to graduated level8 of force. Continueà training in these skill8 and all forca option8 will arrirt the officer8 in preparing for and r8rponding to t h e diversity of rituationr which may be encoutarad A joint rtudy by the U.S. D a p u t m a A t of JUrtiC8 and the Colorado Law Enforemant Training Academy found that 86% of the 49 of Poli- and C itizm O.S. . pol icinat Avoidinu Violence Between Department of Jurtice. 68 law enforcement departments polled considered overly aggressive behavior a result of lack of training. The study was undertaken to research and develop a training program which incorporates a eyetern of violence reduction or intervention techniques. One factor documented from the study was that officers must have sufficient training.and practice in all of the use of force techniquesso. Police training is of critical importance in the control of police-community violence. According to a report, Pr inciPles of Good Policinq, published by the U.S. Department of Justice, training in the "use of firearms is a koy consideration [in the control of police community violence]. However, the training of police officers in general must go beyond the traditional practice of teaching a single response to complex situations. The focu. should be on training a 'thinking police officer' who analyzes situation8 and rerponds in a manner baaed on a value system that is supported by organizational policy." Following an utenriva 8tudy on the u88 o f force, the San Diego Police Department published a raport which has received - national attention. Th8 study was bared on a concern about the number of conftontationr between police and citizens which concludd in violent outcomes. Tha report air0 analyzed what nonh t h a i forca option. war. available to th8 officers. The research so Nicoiatti, J . (1990) Force. Training for D8ercalation of a e Pouce Chief Muazine. 69 for thir report included visits to 15 law enforcement agencies, including the Federal Bureau of Investigation, and forums held to obtain information from the public and from police officers. Baaed on this research, recommendation8 pertaining to training were issued. Some of these recommendations include police training in verbal skills; use of video firearms simulators to evaluate officer'r judgment and diacretionary skills; more police training in confrontation management; increased training in nonlethal tactics and in alternative user of force: and police requalification quarterly with all defanrive equipment. In remponse to the need for continuing police training, the Department of Law and Public Safety ham developed a police proferrionalism and cultural diversity awarenear program for law i anforcoment officors. This program, which includes segments on police profemrionalirm, managing cultural diveriity, attitudes and prejudices, and police-community relation8 and connminicationr, i a currently underway throughout the rtatc. To anrura that thir program i r offorod to am nuny police departments as pomrible tbroughout th8 state, it i r rocomanendad that a detaileà, syrtamatic training plan and rchedule be developed. In addition, the DfVhfon of Criminal JU8tiC8 i r currently dovmloping h r r o n plurr for police in-rervice training which will incorpor~tav8rbal co9imunication rkillm and r o w of tho ler6 than lethal force optionr a polico officor may hava to remort to on the rtraot. Thora larron plans arm baing derigned for training on a departmental level. Both of the80 program rtrerr police 70 In verbal skills and communications with community members. con junction with these efforts to *rove police communications and relations with the community, it is also recommended t h a t a nystem be established to promote public awareness of the role of police. One means of achieving this would be through Division of Criminal Justice participation in quarterly League of I Municipalities reminars and other r d n a r r for local government officials and citizenr. Efforts to regularly educate local government officials as to their rerponribilities for police oversight would further the goal of improving the delivery of police services. SUailarly, effort. to promote greater public awarenerr of the role of police would almo help to reduce public dirtrurt of law enforcement officerr. While some jurisdictions within New Jcrrey may provide inr e m i c e training other than that required by the Attorney General's semi-annual firearms requalification program, the Task Force believer that legirlation mandating in-rarvicc training f o r all police officerr and authorizing the Police Training Cornmirrion (PTc) to ertablirh rtatewide in-service training requirmmentr ir needed. While a number of topics warrant ongoing training, the Tark Force hliever that irruer involving force training are of critical importance. training needs will vary from dep.rtoi.nt UIC of Although rom to department or county to county, the Tark Porca believer that uma of force training rhould ba uniform throughout the rtate. Topic8 which rhould be conridered for inclurrioa i n t h e U I o ~ f force curriculum are: 71 simulated firearms training; conflict resolution techniques; de-ercaìatiön of force techniques; development of verbal skills; and development of physical force defenrive tactics. The Task Force a l s o joins with the New Jersey Law Enforcement Study C o d s r i o n in recognizing that funding for law enforcement training’ir a major irrue. A key factor limiting police department8 from conducting ongoing in-service training programs is the cort of the program. Even when instruction is provided in-houre, there are cortr ancillary to the instruction. Departmental corts could involve salaries for officers attending the training rerrion and for relief officerr to continue police rervicer to the community while other officerr are being trained. Based on a survey of states nationwide, at leart 17 states i provide some m e a n s of dedicated funding for law enforcement training through cruPinal or motor vehicle finer ar penalty asserrmentr. Ten of the 26 stater with mandatory in-service training utilize ruch a mochanirm to fund training activities. Seven states which do not mandate in-remice training al80 utilize such a mechanirm to fund training activities. For the mort part, there dadicatad funds are urad to cover the adminimtrativa and oporationai coot8 of a rtate centrai training academy or the rtata agency rerponrible for ertablirhing police rtandudr. In four inrtmcer, dedicated fund8 a r e dirtributcd to local law onforcmaat agoncier to conduct training or to reimburso trainee exponrer 8uch as tuition, travel and ralary. Since funding ir errantial to arrirt police agenciei develop 72 and conduct the recommended training, the Task Force concurs with the Law Enforcement Study Commission’8 recomaendation that variou8 s t a b l e , ongoing funding sources be considered for inclusion in t h e proposed legislation. -CO-ATIONS VI11 . Legislation should be propored mandating in-aenice training for all police officer8 and authorizing the Police Training C0mmia8iOn to ertabìirh in-service training requiraisnts . IX. Variou8 funding mean8 mhould be examined and conridered for inclusion in the proposed legislation concerning in-service training. X. Police Training C d r s i o n staff should be encouraged to continue to review and ravise the use of force curricula to incorporate the latest legal and technical develop#nts in the ure of force, in particular the development of c-cation skillr. XI . The continued developeat and delivery of statewide training and public awarenerr programs dealing with cultural diversity and the role of the police officer should be encouraged, inciading Division of Cridaal ~usticeparticipation in k a q u e of )lunicípalities s d n ~ r and r other local governient meminar8 to educate local governisnt officials as to t h e i r police operaight responmibilities. u of Interml ~ f f g U r0ffic.r~ In Augu8t 1991, Attornoy Gonor.1 Robert J. D e l Tufo directed that a11 law onforcenient agencieir i n thfr rtate “adopt and conrci8atfou8~y impïomont” the “Intarnal Affairs Policy and Procdurorasl dovolopad cooperatively by tho Dividon of Criminal Jurtice and t h e New Jerrey State Asrodation of Chief8 of Police. 51 “Int8rn.l Affair8 Policy and Procedure, ManaguPent Manual, Chapter 5 . 73 Police There detailed guidelines, prepared for incluclion in the Police i- yanaaemnt Hanual, provide basic standarda and uniform procedures for handling citizen complaints and investigating allegations of police misconduct. Among other thingr, the "Internal Affairs policy and Procedures" directs that: A formal internal affairs unit or function in each e police agency; Police departments accept citizen complaints, including anonymous complaints, at any time; 0 a All complainti about police officer conduct be thoroughly and objectively investigated to their logical conclusions; and e The county prorecutor be immediately notified in the event of any allegation of criminal mirconduct by a police officer or whenever a firoarmi discharge results in an injury or death. The handling of citizen complaints rogarding police officers i ir a key factor in ertablirhing and maintaining good community relations. Not only is it important for general relationships, it is critical in the area of polico-community violence, One way for police administratorr to become awkte of incidents involving the ~ b of e .- force, or situation~that might escalate into violent encounterr, ir through citizen complainto. In order for this to be effective, m r r of the community mart feel free to make complafntlr against officerr. 00- Citizen8 and police alike m i t have alrlrurance that complainto will k objoctively invertigatcá and d8alt with by the departmmt.g2 52 "Intarnal A f fairr Policy and Procedurer, " Police Management Hanual, Chapter 5. 74 The responsible investigation of citizen complaints and internal affairs matters is essential to ensure the integrity of the criminal justice system and to fortify public confidence in the system. Those policies and procedures that direct that all police departments designate a unit or function to handle citizen complaints and internal investigations, also designate that those officers assigned to the internal affairs function should be properly selected and adequately trained. However, the Task Force is aware that very few internal affairs officers receive specialized training. The detailed "Internal Affairs Policy and Procedures" promulgated by the Attorney General directs that the internal affairs officer be familiar with proper investigative techniques and legal standards for both administrative proceedings as well aa criminal proceedings. This is necessary to ensure that the evidence obtained will be admissible in the proper tribunal and the rights of the officer under investigation will not inadvertently be violated. Internal affairs officers should be trained not only in the elements of criminal law, court procedures, rules of evidence and use of technical equipment, but al80 in the dirciplinary and administrative law process. intarnal Each officer murt be skilled in intenriewing and iat.errogation, obrenration, sumeillance and report writing. errance, it i8 er8entiaì that experienced investigators be a88igned t o t h e internal affairs function. Personnel arsigned to conduct internal affairs 75 In investigations must hold the police responsibility to the community and prófessional co&tment loyalties. above personal and group Internal affairs personnel must have unquestioned integrity as well as the ability to withstand the pressure associated with complex and sensitive investigations. it is also recommended that personnel assigned to the internal affairs function reflect the citizenry of the community. Because of the significance of the internal affairs function and the need to have properly trained officero assigned to that function so as to ensure the quality and fairneas of investigations concerning improper use of force and other allegations of misconduct, this Task Force recommends that the Division of Criminal Justice develop standardized guidelines for internal affairs training. Such training should be made available to all officers assigned to an internal affair8 unit or function. Moreover, the Task Force r8cóa~nendsthat those guidelines set forth in th8 "Internal Affairs Policy and Procedures" be applied and utilized by law enforcement agencies statewide. XII. The Divimioa of Criainal J U 8 t f C e rhould develop a t u r d u d i t d guiddiaem for iatarnrl a f f d r s training. Such training mhould be mada available t o a l l officer0 A 8 8 f m to .P b t e m A f f r k 8 a t O t fmC'tiOn. 76 CHAPTER TEWB INVESTIGATION OP COWLAXIITS OF EXCESSIVE FORCE Law enforcement is committed to providing services that are fair, effective, and impartially applied. To accomplish their often difficult tasks, law enforcement officers have been given unique responsibilitbs and authorities by our society. One such authority is the capacity to use the force that is reasonably \ necessary to accomplish their law enforcement duties, within limitations set by statute, court decisions and department policy . Law enforcement officers make critical, split second decisions concerning the ure of force, often under extremely adverre circumstances. The correct deciilion will ultimately r e l y on the individual officer's exercire of sound judgement. The development of the capacity to exercise ruch judgement ir the goal of law enforcement's rigorous recruitment and selection procerr, its reghen of baric and in-renice training, and effective supervision. There ir general agraement that recruitment and selection, training and suparvision are the primary m a n i of preventing mircoaduct in tho area of use of force. However, when an used excesrive force doa8 arise, allegation that an officer ha. th8ro 8U8t b. UI obj8ctiv8 and COnrirt8nt proc.dure inv8rtigating th8s8 actionr. for Ail officers ar8 of course rubject to disciplinary action and posiible criminal proceeding8 for violating their oath and trurt. Yet, the public too often 77 perceiver that police e 8 U S e of force ir commonplace, and that complaining-about such misuse would only be ignored at best, and invoke active retaliation at worst. At the same time, many police officers also believe that complaints of excessive force are not Mpartially investigated. It is their perception that officers so accused-cannot get a "fair shake," with investigative outcomes shaped more by public pressure than the facts of the case. The intensity of public reaction to incidents of excessive force war well illustrated during the public hearings on the Rodney King incident, which involved a videotaped beating of a civilian by three uniformad officers o f the Los Angeles Police Department in the presence of a sergeant and other officers. The incident elicited ruch public concern and outcry that the Independent Commission on the Lor Angeles Police Department was created to examine all aspects of the law enforcement structure in Lor Angeles that might have caused the incident or contributed to the problem of the use of excesriva force by law enforcement. The Independent Commisrion concluded that no area of police operations received more adverse public cornent or revealed more public frustration than the depa-nt'r handling of excesrive force corplainta againrt munberr of ita force.53 Tho offactivrnnesr of law enforcemnt ir dependent upon public approval and accoptuce of polico authority. There can be Pe&a of the Independent C o w* r t . o n on tho Lor Anue l e s police D.Dart9ient, July 1991, p . xix. 53 78 no doubt that citizen confidence in the integrity of the police f increaser when police departments implement meaningful and effective procedures for reporting and investigating complaints of excerrive force. This confidence engenders community support and facilitates the cooperation vital to the department's ability to achieve its goals: An effective framework for handling use of force complaints alrio permita police officials to monitor officers' compliance with department policies and procedures. A n appropriate internal investigation policy will enaure a fair and consistent avenue of redrerr for citizen complainants. Equally important, an internal investigation policy will enrure fairnerr and due process protection to officers accured of uring oxcerrive force. Toward thir end, police agencie8 rhould have formal procedures to accept from any citizen all complaints of alleged excesrive force by an officer of that department. Following a thorough and impartial examination of all of the available facts, the officer should be either exoneratod or held rerponsible for the alleged mirconduct. Recognizing thfr r o d n g l y c h a r rtatement of the conditions that rhould oxirt, tho Tark Force war convinced that there were roveral irruor that noodod to be addrorred in order to move in that dir8ction. Tho Tark Porco noedod to r o r o u c h axirting rtandards and procoduror for internal invortigationr of excesrive fozc8 allegation8 and c o m p u a thoro to current 79 acceptable police management practices. i The Task Force needed to examine the methods and procedures for conducting investigations of serious incidents to determine if the appropriate levels of oversight and intervention are in place. The Task ¡?orce needed to review the consistency and fairness of procedures governing the status and duties of law enforcement officers under investigation for allegations of excessive force. The Task Force needed to study the reporting and record keeping mechanisms on use of forco complaints to determino the available data on the current problem. The Task Force relied upon numerous rourcer of information, including individuals with recognized experience, a survey of local law enforcement agencies, and research publications to assist in compiling recom~m~dationr in this area. Prior to completion of the Tark Force'r work, the Police Bureau of the Division of Criminal Justice, Departnent of Law and Public Safety, completed Chaptor 5 of tho Police Xlrnauement Manual entitlad "Internal Affairs Policy and Procedurer" (herainafter C h p t r r 5 ) . The police -nt Manual is an ongofag wojoct o f th8 Police BureAu to daliver guidance and asrirtiiince to police ex.cutivar in operating their agencies. 8 -nt XAnu.l bogan in 1985 with the release of Chapter8 1 and 2, "Background Invartigrtion" and "Model Rule. Regulation8." The Chapter 3, "Guida to Daooloping a Written 80 and Directive System,t1was released in 1987. Chapter 4, "The property and Evidence Function," was published in 1989. Each chapter of the Police Manacrement Manua 1 has been distributed to every municipal law enforcement executive in the State upon its completion. On August 21, 1991, after notifying the Task Force, Attorney I General Robert J. Del Tufo released Chapter 5. At that time, h e directed law enforcement agencies throughout the State to "adopt and conscientiously Mploment" the standards and procedures in that document f o r investigating allegations of police misconduct in the area of excessive use of force allegations.s4 On the same day, he advised County Prosecutors of the manner in which they rhould proceed when notified, ab required by Chapter 5 , of an allegation of criminal misconduct by an officer or of an incident involving the dirchargc of a firearm that results in injury or death.55 Oboemations The Task Force reached two broad conclurions with respect to a "break of confidence" among segments of both the public and law enforcemunt regarding the irsue of axcersive force. First, the Tark ?orco recognizer that public confidence in law enforcement officor8 i r jeopardized by the perception that officers who ure exco8r~Voforco may be rhielded from the appropriate conrequences 54 U t t e r Augurt 1 4 , 1991. from Robert J. Del Tufo to Chiof Executives, s5 M&orandum from Robert J. D.1 Tufo to County PZOIOCUtOZI, AUgurt 21, 1991. 81 of such actions. Second, the Task Force recognizes that the ability of law enforcement officers to perform their duties c a n be signäficantly hindered by the fear that even a proper use of force may be presumed abusive, and that judgment of such police action will not be conducted in an atmosphere of objectivity. , in addition, thGtTask Force has also identified several specific problems in the current aystem for investigating and reacting to allegations of excessive forca. The recommendations of the Task Force in this area are intended to correct the obremationa and problem areas outlined below. Moreover, the Tark Force believes that by properly addressing t h e s e specific issuer, important steps can be taken to address the general break of confidence noted above. A. sack of uniform rtandards and Drocedures When the Task Force began its deliberations, there were no uniform, consistently applied standards or procedures for accepting, investigating, acting upon or reporting the final dirp08itiOn of complaint8 alloging misconduct by law enforcement officers. Uniform rtandards and procedures are necessary to onrura thm conrirtmcy and accountability errantial for fair and objactitn trmatmont of all person8 involved in tho complaint procer8. Unfforiity and predictability in the complaint process u m tha foundation of a truly foipartial rciivfmw of axcarrive force allogationr. Porcoptions of bias and hproprioty are fueled when ruccorsive invortigationr are handled diffarantly, Opening quartion the rmronr and motivation8 for 8ach rtmp in t h e 82 UP to investigative process. The best intererts of citizens and law enf orcement -officers are served by unif o m complaint review procedures. Statu8 of 1aw enforcement officer8 Dendinu outcome of B. an excessive force alleaation Uniformity war also absent in existing policies regarding those law enforcement duties an officer should be allowed to perform while the subject of an active investigation into an excesuive force allegation. Exirting rtatutes and regulations do not provide adequate guidance in thir area. The lack of conuistency in thii area fosters the public perception that decisions on such matteri are not impartial, ar well as feeding the perception of law enforcement officerr that such deciiions t' may be guided by public reaction to a given incident, rather than by an objective arreriment of the facts. Rrrther yet, inconsistency within a given polico department may stigmatize an officer under investigation if hi8 interim dutier are different than thoie arrignod to othor officerr involvod in prior incident#. C. to rapp;d;iDa and record k s e b u Many polico dapartoi.nts fail to maintain adequate records of complahtr of Pfrconduct and their rubioquent dirporition. This contributas to goaaral dissatirfaction with tho ryrtem. Individual citizonr who file complaint8 and u e not informed of tho rorultr of an invortigation MY arruma tho complaint was ignored. Law onforcomant officarr who ara publicly and 83 unjustifiably charged, but quiatly and privately cleared, may conclude that they and their fellow officers are subject to a systam that allow8 citizens to wilfully file false complaints without the prospect of consequence. The absence of accurate and complete records and reports also undermine8 the 8pility of responsible officials to identify and take action to deal with individual and general problems in their early otages. Without complete information, it is difficult for the law enforcement commander to recognize that a particular officer may have a tendency to Ume excesrive force, or that a particular citizen has a proclivity for filing false and frivolous allegations. With complete and accurate information, law enforcement officialm can identify problrnu early and address them with the appropriate discipline, training and procedural review. D. Inadeuuate outside ovarsiuht of mriour cases New Jerrey Statuter provide for a rtructure in which t h e "appropriate authority," a civilian, is rorponmibïe for the overall performance of a municipal police d e ~ a r t m e n t . ~In ~ addition, tho county prorocutor and tho Attorney General, by virtu. of tho C r w n a l Jurtice Act of 1970, hava oversight over municipaì law o n f o r c e ~ n t.57 Neverthohs8, tho public perception i r that invertigationr of complaints involving tho use of force aro handlod only within tho accared officar'r dopartment, w i t h no 56 pJ.J'.S.AL 4OAtl4-118. 57 p .J.S.A. 52:17B-97, geu* 84 check8 or balances by other segments of the criminal justice i sy8tem* This perception can serve to undermine the public's confidence in the impartiality of the ryrtem, or in other words, its ability to police itrelf. Procedures for oversight, review, and when necessary, intervention into the investigatory process by outside authoritigs will ensure the integrity of investigations, and will also bolster the public's confidence in the process. RXC-TIONS After extenrive review and disCuasion of Chapter 5 of the Police M anaaemcnt XanuaL I "Internal Affairs Policy and Procedurer," and the Attorney General's accompanying memoranda, the Task Force concluder that implementing the policy and procedurer for handling conplainta outlined in those documents will do much to rmmedy the problem identified and outlined above. The Tark Force endor888 Chapter 5 and, with the exceptions and additions notad below, incorporates it as a p a r t of its final recopiwndatfonr to the Attorney General. The Task Forca recommend8 that each law enforcement agency be required to adopt aad impleaant the following procdures. A tinifom approach to dealing with allegations of excesaive forca by law enforcement offfcerr is nocosruy t o maintain confidmce in the rystm. Providing uniforin gufdeïines for the handling of comphfntr will oniuro eff.ctiv8 invoatigations 85 AS well a8 fairness to both law enforcement officers and citizens.58 Wall-established, written policies and Procedures based on statewide standards will eliminate the appearance of arbitrariness. Such procedures will fix the responsibility and accountability for internal investigations with the appropriate individual or unit,-8nd provide a level of consistency sufficient to assure both the public and the police that tho procese is thorough and fair. The Task Forca therefore recommends that all police agencies be required to adopt and implement uniform policias and procedure. for accepting and investigating excessive force allegations conaistant with th8 modeia in Chapter 5, "Internal Affair8 Policy and Procedures." I[-. All cititon raportr alleqhg police officer u8conduct 8hould be 8ccopt.d and appropriately recoräd. A uniform and open procesa for receiving complaints from the public is crucial to tho establirbment of a credible investigatory rystem. Recognizing thi8, the Tark Force recommend8 that all citizan report8 aïìoging police misconduct mumt bo accopted whon pr8r8nt.d rogardi888 of the time of day or day of tho we8k, and that no effort to nmk8 such a report should b8 r8j.ct.d b r a d on a lack of timolino88 in reporting or because it ir U t i a l l y doomad unfounded. ntrth8r, tho Task Force recomanda that an appropriate record bo maintained for every repott t&on of 58 Ci-m u1 allogation of excessivo force. Police Executive Rerearch Forum, police Autncv Bandlinq Co,"A Model Policy Statement," 1981, Foreword. 86 The Task Force recommends that police agencies be required (- to adopt and- implement the procedures for accepting complaints, including anonymous reports, outlined in Chapter 5, 5 9 and to a report form similar to the model form provided in Chapter with the following qualification. use 5,60 If the complainant's Social Security number is requested ar part of the complaint form, t h e complainant must be informed that disclosure is not mandatory, and that the information may be used to verify the identity of In addition, during the follow-up the complainant . 6 1 investigation of a complaint, a trained internal affairs officer ehould inform a complainant about the possible consequence of making statements which the complainant does not believe to be true l . )[v. i A11 reporta involving the poaaibla um of exceaaive force or the diacharge of a firereaulting in injury or death should be thoroughly investigated and the appropriate notificationa made. ~ n citizen y complaint or internal report involving criminal misconduct, the surpacted use of excesaive force, or the diacharge of a firearm rerulting in injury or death, must be invertigated purruant to the agency'r internal affairs policy. The Tark ?orce racommends that each agency be required to follow the procedurer found in Chapter 5 for investigating there serious 5g "Internal M f a i r r Policy and Procedures, " police Chapt8r 5, 1991, pp. 10-13, 36-37. 60 fbid; 61 5 U.S.C.A. t- w, at p 47. S 552a note, "Privacy 87 Act of 1974." incidents.62 As others have noted, incidents that fall into this category require-uniform and thorough investigation because "the integrity of a police department and its relationship to the community is often measured by the professionalism and impartiality which it brings to investigations of police uses of force in general and deadly force in particular. n 6 3 The Task Force Adorses the provision of Chapter 5 that calls for immediate notification of the county prosecutor in the event of any allegation of criminal Muconduct by a police officer, or whenever a firearms discharge rerults in injury or The Task Force aluo endorses the provision of the Attorney General that "...all U80 investigations which involve the of force by law enforcement officiala which have resulted in death or serious bodily injury shall be immediately reported by the County Prorecutor to the Division of Criminal Justice for review, oversight, consultation, and participation as . necessary ~ 6 5 44 . 62 "Intarnal Affaira Policy and Procedurerr, a pp. 13-15, 4 1- 63 "Concapta and Irruar Paper," Da of Porca, International Aaa&iation of Chiafa o f Polfco, F o b r u u y 1989, p.6. 64 "Internal Affaira Policy and Procedurem," pp. 13, 30. 65 Memorandum from Robert 3. Del Tufo to County Proaecutora, Auguat 21, 1991. 88 Police ageacies 8hould adopt uniform Stariddud8 to determine the status of an officer’s duties pending the outcome of an investigation. These standards should include a presuaption in favor of administrative reassignment in cases involving uae of forca which result in death or serious bodily injury. XVI. The Task Force debated at length the issue of what law .. enforcement duties an officer should be allowed to perform d u r i n g the pendency of an excessive force investigation. The status of officers who are the subject of investigation is currently governed by N . J . S . A . and N.J.S.A. 4A:2-4.3, 1lA:2-13 to llA:2-22, f i J . J o A o C . 4A:2-l.l to 40A:14-151. 40A:14-147 to These statutes and regulations address disciplinary actions, ruspensions and terminations of civil service employees and non-civil service municipal law enforcement officiah, but do not provide adequate guidance as to when administrative reassignment or suspension i s appropriate. The Task Force endor8es conrideration of the factors listed in Chapter 5 in determining the appropriate administrative s t a t u s would require that at of an officer under i n v e s t i g a t i ~ n . ~This ~ least one of the following condition8 be met before an officer is suspended: 1. The officer ir unfit for duty; 2. The officer ir a hazard to any perron if permitted to runain on the job; 3. 66 An h a d i a t o ruspenrion i r necasrary to maintain “Internal Affairs Policy and Procedures,“ p. Il. 89 safety, health, order or effective direction of public senices; or 4.. The officer has been formally charged with a crime of the first, second, or third degree, or a crime of the fourth degree on the job or directly related to the ]Ob. In addition to the factors lirted above, the Task Force recommends adding the following presumption: "In cases involving the use of force which results in death or serious bodily injury, there shall be a presumption in favor of administrative rearrigment unlesr there ara significant reasons for imposing a suspension, including but not limited to indictment, or other rubrtantial evidence of guilt." The Task Force recognizes that public rafety issues must be balanced against the right of law enforcement officers not to be subject to unnecerrary or unjustified surpcnrions from duty when under investigation. In addition, the Tark Force recognizes that an inflexible rule governing the administrative rearsigment of an officer under investigation would not be feasible for department8 or agoncier of all r i z e r . 67 Deciding whether or not to adnrinirtrativoly rearsign an officer under invrrtigation also requirri conridoration of factors not exprerrly listed in Chapter 5, but rolavant to the officor'r fitnorr, the danger pored by the officer'r presence and the need to 8U8p.nd in order to maintain coPiDla int Review Policy I international A880~iatlOn of Chiefa of Police, January 1989, p. 2. 67 90 safety and effective public services. Such factors include t h e weight of the evidence against the officer, community reaction t o the incident and the size of the department. Until final disposition of the investiqation or charge8, the appropriate administrative status of an officer under investigation will turn on all of these factors. However, establishing a presumption in favor of administrative reasrigment will ensure that officers who may have used unjurtified force are removed from daily contact with the community. At the same t h e , such a policy will protect officers from disparate treatment and unjustified quspensions. Implicit in the propored language ir the fact that in mort instances the return of an indictment will be sufficient grounds for suspending an officer pending final disposition of the investigation. lVï1. R e p o r t s , boortigations and dispositions of excessive force complaints should be subject to specifid reporting and rocord h p i n q requiraisnts Mandatory reporting and record keeping is critical to the maintenance of a credible investigatory system. Accurate and timely reporting o f use of force incidents is the essential first step in tha procars of monitoring and controlling the misuse of force.6* Tha public perception that the current system does not adequataly address allegationr involving the use of exccr8ive force in h W onforc8ment cannot be ramediad unless accurate records are maintained and appropriate infornation ir made ~ 68 “Concapts and Issues Paper,” p. 6. 91 available to the public. i Therefore, the Task Force recommends that (i) complaints alleging the us8 of excessive force, (ii) the status of inveatigations of the excessive use of force or discharge of a firearm, and (iii) the final disposition of a l l investigations, be subject to mandatory reporting and record keeping requirements:\ As stated previously, the Task Force endorses the reporting requirements found in Chapter 5 and the accompanying documents which provide for the reporting of specific allegations to the county prosecutor and the Attorney General. Further, the Task Force recornends that, upon request, th8 complainant and the officer should be informed of the status of an ongoing investigation. Upon final dirpo.ition, the officer and the complainant should be advised of the results and of the basis for the disposition, to th8 8xtont possibh givon the necesrary confidentiality of grand jury procoedingr and law enforcement investigative reports. The Task Forca also 8ndorses th8 provisions of Chapter 5 that roquire law mforcmment agencio8 to compile and make - available t o tho public an annual report rnmmrrizing, without identifyiag individual8 involved, the typo8 of complaints r e c e i v d and thoir dfsporitionr. 69 Th8 Task Porco recornends that all law enforcomant agoncier bo r8quir.d to submit this annual roport to the appropriate county prosocutor. The county prosecutor is alraady roquired by statut8 to submit an annual 69 "internal Affairs Poiicy and ~roceduros,"p . 36. 92 report to the Attorney General. include in this ahnuaì report a The county prosecutor s h o u l d SUmmary Of complaints on a countywide basis. excessive use of force This will ensure additional general oversight of the investigatory process and permit the identification of potential problema that should be addressed through training or ather involvement by the prosecutor. The confidentiality of investigation reports, disciplinary proceedings, and grand proceeding8 is important to the privacy of officers investigated. In addition, this confidentiality ia esaential to ensure continued willingness of individuals to provide critical information. Therefore, the Task Force endorses the provisions of Chapter 5 concerning the confidentiality of such records. In addition, the Task Force recommends that these provisions be supplemented to explicitly bar release of an officer's home address. The Task Force a l s o recommends that guidance be included to help police departments determine the circumrtancer under which it is appropriate to release other information, such ar the complainant's criminal record, previous allegation8 against the officer, and previous allegationr by the complainant. Ibid., p. 46. Section F, paragraph 5, provides that all dirciplbary hmringr r h all bo Cl08.d to the public unlesi the defendant officer roquertr an open hearing. This provirion is in accord with the provirion of the "Op.n Public Meetings Act" which exceptr matterr of amplopant, evaluation of performance, and dimciplining.of public officer8 from tha Act. See fl.J.S.A. 10:4-12(b)(8). See alro Serra V. Borouuh of Xountunrrd e, 196 H.J. SuDar. 6 , 9-13 (App. Div. 1984); (State Police care). I 93 . XVïII. Uniform procadurea should be implemented to provida for axtarnal ooer8ight and intervention, when necessary, on certain allegations of axceasive force. In addition to internal investigations performed by specially trained officers within the police department, the Task Force recognizer thqt borne degree of oversight, and at times intervention, into the investigatory process by outside authoritiea is necessary to ensure the objectivity and integrity of exceasive force investigations. Uniform standards and procedures for review by agencies outaide of the law enforcement agency sustaining the complaint will ensure that the process is neither consciourly or unconsciously affected by the predisposition8 or bias88 of officialr who directly or indirectly supervise the officer being investigated. This will help ensure the integrity of the process while enhancing public confidence in law enforcement's ability to impartially and objectively investigate the action8 on ita own. As previourly rtated, the Task Force recommends that municipal polico officials or officials in other countywide law enforcemant agancias ba r8quirad to notify the County Prorecutor immediitaly upon roceipt of a complaint or report involving either porrible criminal conduct on the part of an officer, or an officor'r di8chugo of a firearm which rorultr in injury or Tho Tark Porco a180 8ndorr.r doath.'l and the Att0rn.y 71 tho n88ur8s of Chapter 5 Gen8ral's memorandum of Augurt 21, 1991, which Ibid., pp. 13, 25, 30, 4 2 . 94 specifically provide for intervention and oversight of s u c h investigations by the County Prosecutor and the Division of Criminal Justice, Department of Law and Public Safety, When notified of incidents involving suspected criminal conduct or the discharge of a firearm resulting in injury or death, the Prosecutok; at his or her discretion, will either assume responsibility for, or direct and supervise, or monitor the progress of the investigation until the matter is brought to final disposition. Further, in instances involving the discharge of a firearm or other use of force resulting in injury or death, the County Prosecutor will immediately notify and consult with the Division of Criminal Justice. As deemed appropriate by the Director, the Division of Criminal Justice should assist, participate in, or asrume responsibility for the investigation and disporition of the matter. Grand jury conrideration of cases involving the possible use of excessive force represents an independent community consensus on whether the use of force war in fact justified under the circumstances. The Task Force endors88 the standard set by the Attorney Goner81 for grand jury consideration of incidents which may involve use of exceosive force. Therefore it recommends that "...a u t t e r which involves factors indicating the possible use of . u n j o i t i f i d force by 8 law enforcamat officer which resulted in death or serious bodily injury should ordinarily ba presented to a grmd jury for review and dispodtion, especially in cases 9s involving factual disputes ( - . 72 Providing for grand jury consideration of these matters should foster public confidence in the objectivity of the decision making process, as the ultimate decision on whether to indict will be made independent of law enforcement officials. Establishing uniform requirements for those conditions undgr which cases are to be presented should alro reduce the apprehenrion and stigma law enforcement officers arsociate with grand jury investiqationr, as the proceso will, for the most part, be uniform and anticipated. After researching and considering the option of establishing additional civilian overright mechanirmr to enmure the integrity of the invertiqative procemr, the Tark Force recommend8 overright and intervention by the county prorecutors, the Division of I Criminal Justice, and grand juries ar outlined above. The option i of establishing civilian review boards war debated at length. The Task Force considered variour reporta, including: Civil Libertier Union, uL American h I "Police Brutality and its Remedies" (April 1991); Intarnational Aarociation of Civilian Overright of Law BnforC.rP.nt (IACOLB), -naum of orrieht AaQgciea (1983); and New York Civil t i k r t i o r Union, p o l i c e Abure : The Meed for C i v i u ~ v e r ~ yrd o O nvo-, (1990). Hwover, it war ultimately agreed that it would ba inappropriate to rwoaimsnd civilian review board8 without firrt attempting to addre88 the 72 Memorandum from Roòert J. Del Tufo to County Promocutorr, Augurt 21, 1991. 96 inadequacies of the system through existing agencies which currently possess the capacity and authority to take whatever action might be appropriate. In this regard? the Task Force also considers it significant that each police agency in this State is, under current law? subject to policy oversight by civilians outside the police aqbncy and answerable directly to the electorate or elected officials. 73 pionitorina imDlementatioq The Task Force believes that its central concerns can be remedied within the existing governmental structure by implementing the standards and procedures outlined above. The proviaions mandating uniform procedures for accepting and investigating allegationr of excessive forca, and the provisions calling for intervention and overmight of investigations by impartial bodies will ensur:. fair and objective. that the investigation process is These provisions will ensure that officers accused of using excemsiva force will be given a "fair shake" and that their actions will bo given a full and bpartial review based on the facts. Of :.qual importance, there provision8 will enhance the public perception of the investigation procesr as an 73 8 . 8 H. J.S.AI 4OA: 14-118; g. J.S.A 52:17B-4 and 52:17B-7. pumuant to PJ.J.S.& 4OAtll-il8, rules and regulation# concarning tha g o v e r m n t of the police forca and the dirciplina of it8 nrmbrrm must ba promulgatoá by the "appropriate authority," and i f a chiaf o f police 18 emtabïirhed, the chief mart ba made "diractly rorponribîe" to tha "appropriate authority" raguding tho day-to-day operation8 of the police force. Th8 "appropriata authority" is d e f i n d ar the mayor, manager, or other appropriata executiva or aáæinirtrativa officer, such a8 a full-time director of public safety. Por -18, 97 i impartial one, thus fostering confidence that the criminal juitic. propo8.d rycrtem can adequately police itself. Relying on the levels of investigation and consultation by internal affairs units, county prosecutors, the Division of Criminal Justice, and grand juries will also ensure that investigations are conducted by parions with both the expertise to do so in a thorough manner and the authority to dircipline and prosecute in inetances where the use of force is unjurtified. In order to insure conscientious compliance with the recommended measures, the Tark Force ruggeetr that the Attorney General adopt a specific schedule for implementation of the uniform policier and procedures for dealing with complaints of excesrive forca. The Ta8k Force further ruggerts that the Attorney General conduct a review of the implementation process according to that rchedule, and prepare a report of his findings. If, after a review of the Attorney General'r findings, the Task Force concluder that the recommendation8 contained herein have not been ruccerrfully implemented, the Tark Force recommends that the option of civilian review boarda be re-8valuated. A proposed rchedule for compliance ir shown below. It is a r r u m d that implementation will begin upon raleaee of the report of tho Ta8k Porc.. ïnmodiat e ly e Each law enforcumnt agency rhall promptly identify the officer(r) who have been ralected to conduct internal invartigatione 98 and notify the county prosecutor of the officer(s) chosen. 6 months Each county prosecutor shall notify the Attorney General that agencies within t h e i r j<@rirdiction have complied with the selection of an internal affairs officer. The internal affaira training program to be developed by the Attorney General shall be completed. 1 year Law enforcement agency internal affairs officers shall be trained in the program developed by the Attorney General. Each County Prosecutor rhall report the following to the Attorney General: (1) whether each department has filed complete and timely annual reports summarizing the complaints filed and t h e i r dinponitionr; (2) whether tha Proracutor or department head, after evaluating the report#, p.rceives any deficiencier in the 99 investigative process w h i c h s h o u l d be addressed: the total number and type of complaints received in the county and the dispositions thereof: and a summary of any complaints from t h e public, law enforcement officers or other public officials concerning t h e investigatory procesr. The Attorney General rhall report to the public a summary of tho information received from the prorecutors. 100 LAW GOWIUIRSG TüB USB OF FORCE Society has an interest in the vigorous enforcement of i t s criminal laws. 7 4 These laws are intended "to forbid, prevent, and condemn conduct that unjustifiably inflicts or threatens serious harm to inditridual or public interests," and "to insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted, and their confinement when required in the intererts of public protection. w 7 5 None of these purporer can be furthered unlers law enforcement officer. fulfill their duty "to be on the lookout f o r infractions of the law and to use due diligence in di8covering and reporting them, and in the proper case, arresting the perpetrator and lodging and prosecuting a proper complaint. ,976 For this reason we train, a m , authorize and require law enforcement of ficerr to u m rearonable force when necessary. 77 74 Note, Criminal Procedure Search and Seizure Law Officer's Ume of m a d l y Force Aqainrt Nondangerous Fleeing Felon Held Violative of Fourth Amendment m n n e rree V. Garner, 471 U.S. 1 ( 1 9 8 5 ) , 17 Soton 8 .1 L. ROV. 758, ( 1 9 8 7 ) . -0 -0 -0 76 -to v. Donovm, 132 pS.J.L. 77 SO. GI.br.i v. COnllOf, 187 1 ( 1 9 8 9 ) ("the right to make 319, 321 (Sup. Ct. 1945). - uu,rse,m t 109 S. C t L 1865, or invortigatory stop necorrarily carrior with it the right to ure roma degree of phymical cwrcion or t k a a t thoroof to offact it"); tata V. m, 2 9 - ) i . J L 2 7 , 38 ( 1 9 5 9 ) (it ir tha right, indoed h i s duty, to u18 a11 force rearonably necersary to OVO~COID. rerirtance'). -0 AIS of fi cor'^ 101 In tense and uncertain circumstances involving grave personal (- danger,78 we expect them to make split-second decisions so that . society.may remain secure 79 Society has an equally significant, countervailing interest in seeing that the criminal law is not enforced so as t o cause additional harm of thu very sort it is designed to prevent -- harm to the individual and public interests that are implicated when any person "unjustifiably" coerces, threatens, restrains, injures or kills another. 8o Statutory and constitutional provisions defining when and how much force may be used in law enforcement distinguish "justifiable," appropriate and desirable, law enforcement conduct, from "unjustifiable," inappropriate and . harmful , law enf orceunent conduct 81 These rules , together with thore that define the extent of a law enforcement officer's duty to act and the extent of a suspect's duty to submit, embody difficult and critical public policy judgments. They state society's determination of the proper balance of its interests in preventing crise, apprehending criminals, protecting the public 78 Cr.haai v. Connu, U.S. , 109 S. Ct. 1865, 1872 (1989) 79 &ate *O S88 V. W w , 29 BOJ. 27, 36-41 (1959). N,J,s.h, 2C:ll-3, 2Ctll-4, 2Ct12-1, 2C:12-3, 2C:13-2, 2C:13-3. 81 anend. XIV; Graham v. Connorf -. UIS, -., 109 S. Ct. 1 8 ó m û 9 ) ; =nor see v. -, 471 1, 105 $ e Ct. 1694 ( 1 9 8 5 ) . S 8 8 rJ,J.S*A 2C:3-7; U.S* C 102 . I . safety and preserving individual rights 82 Law enforcement officers must operate within the confines of the rules implementing this delicate balance. "Every police officer ha8 an inherent duty to obey the law and to enforce it. [Both are] essential to the preservation of a free society."*3 Thus, while law ènforcement officer8 ar@ "armed and required to act, m84 they are expected to U88 only authorized force.85 Use of force that exceeds the limits set by statutory or constitutional rules, like neglect of duty, exposes officers to both criminal and civil liability.86 And, while some individuals may ask the question, "Doas society condone police brutality in exchange for getting criminals off the rtreets? 8 off h e r s who seek to perform their duties within the 1 w t s of their authority are well aware that the law condemnr and sanctions any 82 Graham V. Connox ,-ILL-# 109 S. Ct. 1865, 1871 ( l? 89 ) ; Tanne roe0 v. Garnex I 471 Y.S. 1, 9-13 (1985); State v. Williams 29 g * J t 27, 36-41 (1959). 83 Stat. 04 State v * W V. Stovena, 203 p.J. SuDer U 29 . 59, 65 (Law Div. 1984). B * J t 27, 36 (1959). 05 Sa8 Gr.hrm Y . C I U.S. -, 109 S. et.. 1865, 1871 (1989); -ta v. Cohen, 32 &J. 1, 9 (1960). 86 S .. ganarally ~r.brmv. c o ut - u I s . - , 109 s . Ct. 1865, 1071 (1989); T.nnooro e v. Gar= 0 471 Y.S. 1, 105 $ e Ct. 1694, 1701 (1985); -0 v. CohQn, 32 g.J. 1, 9 (1960); State v. 29 B.J. 27, 36-43 (1959); #tata V. St. vena, 203 P.J. 59 (UW Dio, 1984); ar V. Town8 of Pircatawgy, 236 &J. S u 550 (App. Div. 4989); =Ata V ~ D o n O V ~132 , B.J.L. 319 (SUP. Ct. 1945). w, 87 Riclcar, Bahind tha Sflonc8~Dwa Socioty Condone Police Bnrtality in Exch~gcrfoz G.tting C r b h a l a O f f the Street," ABA Journal, July 1991 at 45. 103 nunreasonable" police conduct. Given the importance of statutes governing the use of force to both- law-abiding Officers and law-abiding citizens, the Task Force studied and evaluated current law to determine whether statutory reform was required. Current law was measured against three standards deemed essential to the adequacy of statutory law addressing this critical issue. A. -- Claritv Statutes defining when and how much force is authorized must be clear and understandable. To permit adequate training of officers who " a r e often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving, n 8 8 statutes should clearly identify, not obfuscate, the judgments they must make. Because the public's respect for the law and its officers is dependent upon the fairness of the law and the lawfulnesr of the conduct of public the law governing the usa of force must be comprehensible to the public. B. -- Consistencv with Conrtitutional Standards Statutes describing when and how much force m y be ured in furtherance of law enforcement should be consistent with constitutional rules. Conristant rtandudr will avoid confusionf better protect the rights of citizens and better protect who supervisa and train them from officars and tho civil liability. !8 104 C. i . . -- Tdabilitv Commensurate with CulDability The law should distinguish between officers who intentiónally in jure or kill, without justification, r death because they and officers who cause injury o believe, albeit unreasonably, that performance of their duty or preservation of their life requires the use of force Because officers are under a legal compulsion to enforce the law and perform this duty under difficult circumstances requiring split-second judgments, the law should provide some mitigation when an officer commits a crime because of a culpable error in judgment.91 . Current statutes do not clearly meet these standards, and the Statutes defining the right and Task Force recommends reform. amount of force that may be used in law enforcement must be clarified. Inconsistencies between New Jersey statutes and constitutional ruler describing authorized force should be reconciled. And, rtatuter should be revised to clearly provide appropriate reductions in degree of criminal liability for an officer who commits an offense becaure of a reckless or negligent belief that circuinrtancer Jurtifying his conduct exist. The rearonr for and the precise nature of the reform suggerted in each area are explained more fully in the remainder of thir chapter. Draft statutes that would accomplirh these roforms are includod ar an Appendix. A* C1.titv C u r r e a t statutory rular describing the circumstances under which lau enforcament officer8 are authorized to use force and deidly force u o found in Chaptor 3 of Titlo 2C, Now Jersey's Codo of Crfininal JUrtiCe, entitled General Principie8 of 91 See State v , W i w 29 ySeJ, 27 (1959). 105 Justification. Conduct that would be criminal under other circumstanceis, is "justifiable" and not punishable if it is consistent with rules set forth in Chapter 3 0 9 2 Prior to the adoption of the Code in 1979, the Legislature had never attempted to set forth rules to guide the use of force: the rules had been developed by the coutts alone on a case-by-case basis.93 While the Legislature's goal waa to "establish .. standards both a8 to the right to use force and as to the amount the statutes enacted are too of force which may be used, detailed and too complex. As one Commentator explains: Unfortunately the law of justification is complicated and thu8 the Code provisions are complicated. Often one tranraction M Y involve claims of justification under several sections The detailed provisions of each justification are alightly different and in situations where more than one is applicable each must be consulted separately. Finally, each section itself is complicated. Mort include separate requirements for the ure of force and deadly force and exceptionr to and limitations on these requirements. The total effect is much like that of a tax code. A section should be read carefully several timer before one assumes that anomalous results are produced by it.95 .. .. The Task Force agrees with this asrerrment of the complexity of the Code's jurtification defenses. It doer not, however, . 92 8.8, 8 . û o I floJ.S.A 2C:3-7 (use of force to effect an arrest, pravent an escape, prevent the conmission of a crime). 93 u Rappt't of the New Jarrev C r w a l Law Revirion C o n m u r s m , Vol. 1 1 8 C o m n t a r y at 78-79 (1971) [hereinafter cited ar C o d r r i o n Report]. * . 94 , note 20 at 79. 95 J. Cannel, New Jerray Code of Criminal Justice, Comment to Chapter 3, at 124 (1992) [hereinafter Cannel]. 106 concur with the implicit suggestion that defenses such as these, which provide the rules governing when and how much force officers may use, need be this complex. The importance of the public interests served by vigorous law enforcement and injured by "unlawful" law enforcement demands ruler that are claar'<bnough to be applied by officers who, when confronted with danger, are "forced to make split-second judgments -- in circumstances that are tanre, uncertain, and rapidly evolving. " 9 6 In such dangerous and volatile circumstances, when there is "little t h e for detached reflection, n97 no matter how thorough their training, we cannot expect law enforcement officers to apply a body of law that is so complex and intricate ar to warrant comparison to a tax r! Further, the law must be comprehenrible to the public. When the public perceiver a particular ure of force as excenaive or a particular failure to act au dereliction of duty, the law must be sufficiently clear to allow the public to distinguish between an officer who should be punished and a law that should be 96 109 $ * Ct. 1865, 1872 (1989)e g7 Soe 3 r m V. United St a t u 256 U e S , 335, 343 (1921) (wh8re Justice Holmas criticizer tho conrpl8xiti8s of the retreat male and notas that thar8 ir littla tfpair for datachad reflection 4t tho point o f a k n i f o ) . ~~ 98 SO. m a 8 8 8 0 V. G W , 471 p.s, 1, 20 ( 1 9 8 5 ) (di8CUSdng the bportanca of clear standards); Cannel, at 124. 107 Accordingly, the Task Force examined the provisions of Chapter. 3, judicial decisions and scholarly works with the goal of eliminating unnecessary and confusing complexity without significantly altering the standards expressed in current law. 1. Detailed Reuuirements. PIxceDtions and L imitations That Can Be Mor e Clearlv Stated as General Reauirements. Much of the complexity of current law is attributable to its reliance on detailed and specific rules, each with numerous exceptions and limitations, to describe the amount of and circumstances under which force may be used in furtherance of law enforcement. Most of these rules can be subsumed in, and more comprehensibly stated as general principles. For the moot part, the detailed rules and exceptions limit the use of force in two ways : 1. The force used must be nccesrarv to protect person or property from an unjustifiable threat or to accomplish a lawful and duty, such as effecting an arrest or preventing 2. The force used must be p a s o n u under the circumstances -e a u c , deadly force ir permitted to avoid threats of death or but not p e d t t e d t o avoid threats to serious bodily h property alone. l%fm 99 V. Bud ion Countv Board of Preeholderq 116 HaJ. 21, 26 (App. Div. 1971) (quoting le ex r e l . Keenan v . BcG-, 13 rll.2d S20, 1SO p.EL2d Ma,% (1958)) loo S88 &J.S.& 2C:3-4aO, 2C:3-6~. , b. (1), 2C:3-7ao, b. ( 1 ) (a).. 101 See ~.J.s A. 2C:3-4bO(2); 2C:3-6b0(2),(3)(c), and d.; 2C:3-7b.(2); I88 al80 State V. Kallt 97 B.J. 178, 198 (1984); Stat. v. Fa 45 H.JI 92-93 (1965); S t A t 9 V. Zellcrs, 7 N.J.L. 265, 293 (Sup. Ct. 1823); rea generally P. Robinron, Cr iminal Law Pefenra# secs. 121, 131-13S, 141-142 (1984). . . 108 General standards such as these are more easily understood and applied than the numerous specific rules, with accompanying exceptions and qualifications, currently employed in Chapter 3. For example, N.J.S.A. 2C:3-7 currently grants authority t o use deadly force in arrest only when the arrest is for commission or attempted commissibn of homicide, kidnaping, sexual assault, sexual contact, arson, robbery, or burglary of a dwelling. 102 A seriar of exceptions are then employed to luilit this authority to inrtances where the perpetrator porcs an imminent threat of deadly force to the officer or another, or the force is necessary to prevent the crime, or the force is necerrary to prevent the perpetrator's escape. 103 This complex approach seems roughly designed to authorize the use of deadly force in arrert only when such extreme force is necessary to accomplish the arrert of a ruspect who would pose a substantial risk of serious bodily harm if not apprehended . immediately lo4 lo2 PJ.J.SeAL 2Ct3-7b*(2)(~). N.J.S.A. 2C:3-7be(2) (d)(i)-(iii). $04 SOO -on RODO-, nota 20 at 91 (explaining that tha lirt of crimes includes those that either demonatrate that the urostoo has ured force against a person or that h e d i a t a apprahonrion is necessary). The list, however, both e . a . , some axcludar #op.crlwr that involvo usa of forco fozms o f aggravatd arsault, &J.S& 2C:12-1 and includes roma c r h r that may involvo no soriour thraat of bodily harm demonstrating a n o d for h d i a t o approhanrion j e % , some forma of soltual contact, &J.S.AL 2C:14-3. Soo alro w s s e e V. m,4S1 yes, 1, 14 (1983) (doscribing similar difficulties gonoratad by ralying on tho dirtinction bottnan felonies and misdameanorr to idantify fartancas in which doadly force ir appropriate). -- 0- -0 109 Similarly, N.J.S.A. 2C:3-7 currently prohibits any use of force in arrest unless the officer "makes known the purpose of the arrest, or reasonably believes that it is otherwise known by or cannot reasonably be made known to the person to be arrested. This specific rule and its exceptions are merely exampler of the application of the requirement that force is not ', authorized unless and until it is necessary -- i.e., when a demand to submit to arrest will suffice, the use of force is not necemsary. By setting forth this ringle illurtration of the application of the requirement of "necessary" force, the statute obscures rather than clarifies the straightfoward message that force is not justified unlesr necessary at the time and in the amount used. The reality is that no detailed list, however comprehensive, could adequately account for the variety of factual situations that arise in individual cases and impact on the baric decisions the officer must make and how much force is necessary. 0- is force necessary Illustration; not only complicate the matter but also may mislead by suggesting that factors not idontifiad are irrelevant. 106 Tho conronaus of tho Task Force i r that general standards lo6 ror oxuplo, tho rtatuto doos not direct an officer not in uniforni to idontify hhself as an officer when doing SO will avoid th8 n o d for using force. An officer focusing on the prwiro r u h o sot forth in pr.J.S.rl, 2C:3-7, rather than the genoral rulo'that force rhould ba u r d only when necessary, could earily dotermino that identification ir irrelevant. 110 will provide better guidance than the current maze of detail t included in the provisions of Chapter 3 . The following standards are recommended: Use of non-deadly force for law enforcement purposes should be justified when immediately necessary and "reasonable under the circumstances" to accomplishment of the officer's lawful duty. Use of "deadly force" for law enforcement purposes should be justified when immediately necessary: to effect arrest of a person who would pose a substantial risk of serious bodily injury to any person if apprehension were delayed; or to prevent the commission of a crime involving a substantial risk of immediate death or serious bodily harm to any person. These standards are generally consistent with but far more comprehensible than those set forth in Chapter 3. lo7 Because law enforcement officers are also called upon to defend themselves, others and property against u n e n t threat of harm, the provisions of Chapter 3 governing use of force for these purposes should be simplified in the manner discussed To the extent deadly force focooer on the rumpact rather than imp0880 & more r8tional that the standard for permissible use of the severity of the harm threatened by tho crime the riumpect has committed, it and understandable limitation than that impor& bol current law. mrth8rPaor8, thfr rtandard is consistent with that which law urforcaant offic8rr are obligated to follow a8 a M t t 8 r O f COn8titUtiOnAl 1AWo S M -.88@0 v. Ga, 471 Y.S. 1 (1985). Tha rrtmdud for u88 o f non-doadly force is roamwhat more rertrictive than curtont law in that it requires that tho force ba both nocemrary and aroa8~nableundor the circumtanco8 Thi8 re8triction, howver, i8 al80 conrirtent with conrtitutional lidtations on th8 uma of non-deadly force. See Graham V. Connog, U.S. 109 Ct. 1865 ( 1 9 8 9 ) . - $ 0 111 Further, the statutes defining the defenses of self, &ove.lo* other8 and property should be combined in order to avoid the need for confusing cross-references, exceptions, and overlap between these defenses. log 2. SDecific Policv Juduments That Cannot Be Stated In General Standards. Several provisionr of Chapter 3 have special significance that cannot be adequately expressed by general standards limiting justifiable force to necessary and reasonable force. These provisions promote specific public policy judgments concerning the use of force.l1° By either authorizing force that would otherwise be prohibited as unnecessary or unreasonable, or prohibiting force that would otherwire be authorized, these provisionr significantly affect the amount of violence that will be tolerated in furtherance of individual or public interests. Examples of such public policy exceptions include the following: In order to prevent ercalation of the uae of force in lo* See I . J . S . A I 2C:3-4 (use of force in self-protection), 2C:3-5 (use-of force for the protection of other perrons), 2C:3-6 (uae of force in defense of premises or personal property). log The caplexities of the crorr-references are best dwn0nmtzat.d by the fact that proper application of a-major limitation on the use of force in relf-defense dependa on a referebcn to a provimion fa the defonse of proprty that doem not even U d 8 t . Sea H.J.S.A, 2C:3-4bm(1)(b)(ii), 2Ct3-6; see also Stat. v. EoI 208 B.J. Su480 (App. Div. 1986) (discussing the significmcm of a cross-raference to the self-protection justification included in the rtatute authorizing use of force for tho protoction of third persons). 'lo See generally 2 P. Robinron, Ct;aaFnai Law Daf enrc a secs. 131(e), 142(f) (1984). 112 1 i encounters with police officers, current law does not authorize the uae of force to resist an unlawful arrest unless the officer-employs unlawful force. yS . J . S . A . 2C:3-4b.(l)(a). In order to allow vigorous enforcement of the law,ll2 officers are authorized to use force to defend themselves even if they could avoid patronal harm by failing to perform their duty. N.J.S.A. 2C:3-4b0(2)(b)(ii). In order to give.specia1 recognition to the right to be free from attack in one'r dwelling,113 a person in a dwelling may use deadly force against an intruder even if the intruder does not threaten death or aeriour bodily harm. fl .J.S.A. 2C:3-4ca(2)(a). It is important to recogni ze that exceptions such as these can eaaily be altered to encourage or discourage the uae of force in the protection of individual and rocietal interests. For example , to further reduce the number of forceful encounters with police officers, this State could, as others have auggeated,l14 authorize the uae of force to reriat an unlawful arreet only if the force employed by the officer threatens death or aerious bodily injury. Or, if the public were willing to sacrifice vigorous enforcement of the criminal law in order to avoid forceful encounterr between citizens and the police, the __ 111 see State V. 57 BeJ. 1'51, 155058 (1970); Model Penal Code Sec. 3.04, Coment 19 (Tent. Draft No. 8, 1956). see w a r i o n RODO-, note 2 0 at 87. in state #.J, 27 (1939), the Supreme Court explained the rule aa "foundd in rearon and public utility, for few men would quietly aubndt to arrest if in every case of rerirtance the party empoworod to arrest was obliged to desist and leave the business undone.. Id. at 39 (quoting u o c k v. Statq , 65 f l * J . L t 557, 572 (E. L A. 1900)). V. w 112 u , 29 This ir the obviour intent of .i#nd,wnts to p.J .S.A. 2 C t 3 - 4 and 2Cs3-6 adopted in Chapter 120 of the Laws of 1987. 11' Model Penal Cod8 8.C. 3.04. The draft 8tatUt88 included in the Appendix clarify, but do not significantly alter, the current rule. 113 law could absolve officers of the duty to arrest persons who resist or could direct officers not to pursue suspects.115 Alternatively, if the public is unwilling to relieve officers of the duty to pursue persons who do not comply with lawful orders but is nonetheless interested in limiting dangerous chases and encounters, the law could be revised to impose strict sanctions for non-compliance with orders to halt li7 While the Task Force has not attempted to resolve these difficult questions of public policy, it must emphasize that such judgments are now included in the provisions of Chapter 3 and in laws defining the obligations of citizens and public officers. The judgments incorporated in there laws play a significant role in determining when and the amount of force that will be employed in encounters between citizens and police officers. The Task Force recommends that the Attorney General consider whether it is appropriate to solicit public opinion on these 115 See State v. Williamt 1 29 PJ.J* 27, 38-39 (1959) (cautioning against adoption o f a rulo that would encourage officers to default in thair duty to capture). There ir evidence that investigatory stops by police officers on straet patrol ara M affmctive tool in reducing c r h . SnDfx, art Invasti t o m Detentions In Search and w g , 1985=L.J. 849, ü W - 5 3 ~(1985) ~ Experience indicatm, howaver, that such stops, on occasion, lead to flight and putroit. . As tho Suproma Court recently notad, "Street pursuits alwayr place tha public at some risk, and compliance with police orders to stop should tharafora be 8ncouragad." California V . Bodari, u,s,- I 111 $. Ct. 1547, 1551 (1991). The New Jarray Lagi#latura has moved toward this approach in increasing penalties for flight by auto following a signal to stop. See N.J.S,A. 2C:29-2 (offensa of resisting arrest and eluding). - 114 precise issues by requesting legislative hearings, by submitting i public questions to the voters or by some other means. 3. . Clarification of the Rules Definina AmroDriate Force AccomDlished bv Distinauishinu Justified Conduct From Conduct That the Actor Raasonablv Believes is Justified. The provisions of Chapter 3 currently define the \ circumstances under which a person may use force in terms of the actor's "reasonable belief." The frequent repetition of the "reasonable belief" language adds complexity to the statutory provisions and raises difficult questions of statutory construction. 11* Thus, in order to more clearly state the rules describing appropriate use of force, the Task Force recommends treating the issue of "reasonable belief" in a separate, single statutory provision. There is an additional, and perhaps more important, benefit to be derived from distinguishing force that is in fact consistent with the rules from force that an officer reasonably, but mistakenly, believer is justified. In the first instance the conduct i r proper under the law, and it ir proper for a l l persona in similar situations in the future to uße force. In the second inrtance the une of force war an underrtandable, reasonable mirtake, and, whilo the person who made the reasonable mirtake rhould not bo puninhed, force rhould not be ured under similar circunutanc8r in the future. By providing separate defenses '* -- ta v. H o m I 208 E . J . S u w r . 480, 485- 88 s881 ).Ut, (Appa Div. 1986) ( d e t s n i n g the proper application of the rearonable b8li.f requirement in a care involving defenre of another perron). 115 a justification defense for proper conduct and an excuse defense i for a person who makes a reasonable mistake -- the law reserves the lahel "justified" for conduct that is proper.l19 As a reuult, the public and officers alike will be able to distinguish a use of force that ia approved from a use of force that is not. When an officer, because of a readonable mistake, shoots an unarmed person, all will understand that the law does not authorize Buch conduct. B. Consistency with Constitutional Standard 8 In a 1985 decision rendered in the case of Tennessee v. Garneg I 120 the United States Supreme Court declared the demise of a common law rule permitting the use of deadly force whenever Balancing the necessary to effect the arrest of a fleeing felon. "nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrurion, n121 the Court concluded that the use of deadly force is not sufficiently productive as a moans of effective law enforcement or as a means of bringing an offender to justice, to justify taking the life of the 0ff8nder.l~~ On this basis, the Court held that it wad constitutionally unreasonable to employ deadly force to apprehend 808 88C80 24, 120 gonotally 1 P. Robinson, . I W I 25, 2 7 ( 0 ) , 32(c),(d). -88. v. 471 1 (198s). 121 T.nn.rr.0 v. 471 U.S. 1, 8 (1085) (quoting m t e d Statam v. P l a , 462 p.S, 696, 703 (1983)). 122 Tennesaea v. G m 471 U.S. 1, 9-11 (1985) 116 - a felon who poses no threat of serious physical harm.123 E The Court also held, however, that it would be constitutionally reasonable to use deadly force when necessary to prevent the escape of a suspect, if there is probable cause to believe -- either because the suspect has threatened the officer with a weapon or committed a . c r h e involving the infliction or threatened , infliction of serious bodily h a m -- that failure to effectuate the suspect's immediate arrest would pose a threat of serious physical harm to the officer or 0ther8.l~~ As discussed above, N.J.S.A. 2C:3-7 authorizes the use of deadly force to effect an arreet on a different basis. Rather than stating a general rule concerning the danger posed by t h e muspect, the statute lists crimes -- homicide, kidnaping, sexual assault, sexual contact, robbery, arson, burglary of a dwelling I' or an attempt to commit any of those c r b r -- and authorizes the use of deadly force if necessary to prevent the escape of a person who has committed an enumerated crime. 12s While section 2C:3-7 is a more rearonable version of the common law rule invalidatad in w,by focusing on the crime coirimitt8d rather than tha danger posed by the suspect it nonethalass p d t s the usa of deadly force in some cases in 123 m e 8 8 @ 8 V. G 124 w 8 # S 8 8 V. 125 P.J.S.Ar w I 4 7 1 U.S. 1, 11 -12 ( 1 9 8 5 ) 471 yes. 1, 11 -12 ( 1 9 8 5 ) 2Ct3-7b. (2)(c)-(d)(iii) 117 which Garner would not.126 Conversely, by limiting the use of deadly force in arrest to a specific list of crimes, section 2C:3-7 prohibits deadly force in some cases where Garney: would permit it.127 Thus, under current law, officers are required to follow inconsistent rules. Although these inconsistencier have been reconciled in guidelines issued by the Attorney General, the Task Force nonetheless recommends amending statutory law to conform with the G a m e € standard. The current inconsistency creates an intolerable level of confurion where clear guidance is needed. More importantly, an officer who has acted in accordance with constitutional limitations should not be subject to punishment for a crime under the law8 of this State, and the laws of this State should not authorize use of force that is inconsistent with 126 For example, under Garnez, the use of deadly force to prevent the escape of a person who had committed burglary of a dwelling would not be deemed reasonable unless there was probable cause to believe that the suspect had inflicted or threatened t o inflict serioum bodily h a m during th8 course of or flight from the co~rdssionof the offense. Tonne msee v. Garne€, 471 U.S. 1, 23-24 (1985). Other c r h r enumerated in g.J.S.& 2C:3-7be(2)(c), m y or may not ba committed in a ~ n n e rthat satisfies the Garner rtandud. For utample, 801~.conduct prohibited ar rexual assault and czfrin.1 rexuaï contact involve no threat or infliction of seriou. phy8iCAl h m . ..S P.J.S.A. 2C:l4-2, 2C:14-3. an officer would be jurtified lZ7 ?or ex.itple, under in uring deadly force if necessary to apprehend a person who had inf1ict.d reriour bodily injury. See m o r r e e v. Garner , 471 Y.S, 1, 11 (1965). Under N8w Jer8ey law the crima could be aggravAted assault or attempted murder. See H.3.S.A. 2C:ll-3, ZC:S-l, ZC:l?-lb.(l). A8 aggravated asrault i8 not one of the c r h a listed in 2C:3-7, the statute amem8 to require the officer to determine, at r h k of criminal liability, whether there is reason to believe that the crime is attempted murder. 118 the constitutional rights of its citizens. 12* Finally, as direusred in- section A . above, general standards of the sort s e t forth in. Garner provide clearer and more meaningful guidance than the detailed rules set forth in section 2C:3-7. For the same reasons, the Task Force reconmiends amendment of N.J.S.A. 2C:3-3 an'p 2C:3-7 to incorporate constitutional restrictions on the use of non-deadly force. In 1989, in Graham v. Connor, 129 the Supreme Court held that any force used in arrest, deadly or non-deadly, violator the Fourth Amendment unless the force employed is rearonable under the circumstances liO It is important to stress that mending New Jersey's statutory law to incorporate the constitutional restriction8 on the use of force will not make every violation of a constitutional right a crime. As discusred above, an officer who reasonably believes that circumstance. jurtifying the use of force exist has a complete defense to any form of criminal liability. A belief ir rearonable unlerr the actor i a reckless 12* LAW enforcement officiala training or directing officers to adhore t o Code standard# that allow force prohibited under G a r n u and ar well ar the municipalitier and counties that employ the officiala, rirk civil liability bared on "deliberate indiffe~once"to the right8 and safety of the public evidenced by inadoquate tr8iniag. See, j . u . , Davi8 v. Maron Countv , 927 E,2d 1473 (9th Cir. 1991), 98rt. p JIoS, 112 9. Ct. 275 (1991)e -, - 129 130 (1989) Graham V. Graham v. - JJ.S* Connor, - Y.S. Connor, 119 109 S * Ct. 1865 (1989). 109 s. Cte 1865, 1871-72 or negligent in holding the belief.131 For purposes of the criminal law, negligence requires a "gross deviation from the standard of care that a reasonable person would observe in the actor s situation. ~ 1 3 2 1 In contrast, civil liability for excesrive force will attach unlesrr the officer LI . conduct is objectively reasonable 133 Thus , by eliminating inconsirtencies between rtatutory and conrtitutional males defining when and how much force is authorized, the Legislature can provide officers with consistent guidance on appropriate force without improperly equating standards for criminal and civil liability. A reasonable belief is one that ir neither recklessly nor negligently held. * J . S * A . 2C:1-14j. 132 NeJeSeA. 2C:2-2b*(4). 133 See Grabam v. Connor! U.S. , 109 S . Ct. 1865, that is, 1872 (1989). An officer'r "obtectivq 'good faith' whether he could roaronably have believed that the force used did not violate the Fourth Amendment may br rolmvant to" a defense of qualified haunity in a civil action for a violation of Fourth Amandment, 42 Y . S . C . & rec. 1983. Ipt at 1873, 11.12 (1989) (doclining t o addrerr the exact scope of the qualified h u n i t y defenre in axcer~iveforca caser). The iama standards of liability and qualified iiPwinity would likely apply in an action filed U0d.r th. bt.V Jer8.y T o r t C 1 . h Act. Se8 V. Torn ahir> 9fPirc.t.w.vt 236 B e J . S u w r 550, 553-54 (App. Div. ,1989) (aquatAa9 r t m d u d r of liability and qualified h n i t y under 42 y.S.C.& 8 . c . 1983 md th. Now Jersey Tort C l a b Act in a care of prmtri.1 allaging .xcorrivo w e of forca in rertr.int u v a # v. Marcar Coupf;y, 217 H.J. -S 614, 621-23 detain..); (App. Div. 1987) (equating standard8 of liability and general qualified hamunity under 42 y . S X ,A. sec. 1983 and the New Jersey Tort Claim8 Act); 8.8 a i r 0 m k V. Citv of -N , 109 B.J, 173, 186-87 (1988)-(dircusrfng qualified h n i t y AI a defenre to a rec. 1983 alleging inrufficiency of claim under 42 p.S.C& probable cause for arrest). 0- -- . 120 - . . E C. -na1 L iabilitv Commensurate with CulDabilitv Under current law, an officer who purposely or knowingly causes death because he mistakenly believes that the use of deadly force is necessary either to protect the life of an innocent citizen, or to effect the arrest of person who has j u s t . committed a homicide, or to preserve his own life from a threat encountered in the line of duty, has a complete defense if h i s mistake is r e a ~ o n a b 1 e . l ~ If ~ the officer’s belief is reckless or even negligent, however, the officer is liable for murder.l35 Recognizing “the possible consequences [of this rule] to public safety officers," the Supreme Court recently commended the “iarue to the consideration of the L e g i r l a t ~ r e . ” ~The ~ ~ Task Force has considered there consequences and recommends reform, A8 discussed above, officers, unlike private citizens who are free to turn away, are under a legal conpulaion to act and must make split-second decirionr in circumstance8 that are tense and fraught with danger, An officer acting in furtherance of his lawful duties who believer, albeit unreasonably, that the 134 The law anforcoment and self-defenre jurtificationa are available to a parron who rearonably but mirtakenly believes that thû U 8 8 O f fore8 f8 necerrary, Ys o J * S * A * 2C:3-4, 2C:3-7, 135 Thi8 a 8 8 U ê 8 a purporeful or knowing homicide, N. J.S . A , 2Cr3-1%. If th8 a h t a k e n actor i 8 only aware o f a subrtantial rirk that hi8 conduct will cause death, then the actor is reckler8 a8 to killing and reckless ~ n r ï a u g h t e ri 8 the crime. SO. 2Ct2-2, 2C:ll-4. In either Cale, there i8 no defaaro or mitigation available to an actor who unreasonably bdi8tt.8 th* forca h. U808 i 8 jurtified. Sa8 State V. B w e n 8, 108 PJeJr 622 ( 1 9 8 7 ) . 136 State V. Boweng , 108 P.J. 12 1 622, 634-35 (1987). c i r c w t a n c e s justify his conduct is simply not as blameworthy as an officer who kill8 or injures without such a belief. Prior to the adoption of the Code of Criminal Justice in 1979, such officers were not subject to punishment for murder, Officers who killed because of a "good-faith but mistaken estimate of [their] right and duty to do SO" or "an erroneous 1, decirion as to the need to kill" were guilty of manslaughter not . murder 137 The explanation for this rule of mitigation was as follows: Police officers are not volunteers. They are armed and required to act to enforce the law. They may err in their judgment and exceed their authority in the sense that they misjudge the need for extreme measures or their right to resort to them. Yet, where the purpose is to comply with duty, it would be unroaronable to impose t h e measure of criininal rerponribfïity applicable to the citizen whose involvamnt do88 not originate in a legal compulsion to act and who is free to turn away. .'. We r e m r n to the proposition that the offense of an officer so motivated ir in essence a culpable error of judgment made in the stress of an encounter he did not invite.138 As the S u p r e m Court har recently noted, the Legislature'r intent and purpose in eliminating a mitigation of this sort for law stat8 v*'W-, 29 P . J r 27, 36, 38-39 (1959). The c o m o n h W ritigation war moro l i b r a 1 than the one proposed here. kr. offfcot vho um& moro force than necesrary war completely excurod from lirbility un1088 th8 fore8 war 80 excerrive a8 to r8veal "an utt8r dirrogud of th8 rights of tho offender." Id. at 42. An officer who killd due to u80 of oxcorrive force of that natur8 rocofved a d t i g a t i o n to mrrnrlaughter. 13' 138 V. nil- I 29 N A , 27, 122 36, 43 (1959). enforcement officers are far from clear. 139 The LcgislatÚre did retain the analogous common law r u l e of passion/provocation, which provides a much broader mitigation for private citizens who unnecessarily kill when provoked -- for example, by physical confrontation, threat of violence or present or part attack agairht themselves, relatives or close friends.140 in comparison, 141 it seems quite unjust -- especially since the only offense in thir State punishing a perron who negligently injures another io simple assault -- to deny a mitigation to an officer who believes, albeit reckltasly or negligently, that circumstances encountered in the performance of his duties 139 see State V. BOWens, 108 p . J . 622, 630, 634-35. I4O Sec, J.Q., State v. Pitte, 116 p.J. 580, 604-06 (1989) (victim's inruïting remarkr, exchange of pU8he8 and shoves, and victh'r announcement that he war going to get his gun deemed adequate provocation); State v. Covlq 119 p1.3. 194, 225-26 (1990) (avidenc8 that defendant after heated argument with the victim, killad tha Victim in an effort to protact hi8 lover, the victim'r wife, war rufficiant to ertabïirh "adequate provocation" in a case where dafandant rmpeatadly rhot v i c t h ; evidence that victim had for A long pariod of tima rubjected his wife to abuse war almo indapadantly adquate); State V O Bl8hOS 225 P.J. super. S96, 605 (App. Div. 19û8) (evidonca that defendant who stabbad a victim attar entering a brawl in which no one else wae a r w d but i n which him nephew war baing victimized war rufficient to ertablirh adaquat8 provocation); soa ganerally State v. 117 B e J L 402, 414 (1990) (lirting caures deemed to be sufficiontly provocativa). . w, 14' S8e -8 v. W U 29 27, 42-43 ( 1 9 5 9 ) (oxplaining the rule providing a mitigation for an officer who urea wanton excarriva forca in the prforiaince o f hi8 dutier as r8q~ir.d by tha " f a i r analogy" and " p u i t y of conriderations" betweon ruch an officar an¿ a private c i t i t a n who act8 under provocation). 123 require the use of justified force. 142 Accordingly, the Taak Force propores a mitigation under which a law enforcement officer who ha8 made a negligent mistake would have a complete defense to any c r h e other than one that required negligence as to any element with a deadly weapon. -0 for example, negligent injury An officer whose miatake was reckless would have a complete defense to any crime other than one requiring rccklersncss or negligence as to any element -- for example, negligent injury with a deadly weapon or reckless . manslaughter 143 142 i While it would be defeniible to extend thir mitigation for mistake to private citizens, ar the Supreme Court did under pre-Code law in State V. Powell, 84 NoJ. 305 ( 1 9 8 0 ) , recent decirions on provocation/pasrion manrlaughtor indicate that this ir not neccrrary. Although an honert but unrearonable belief in the need to use justified force doer not in itself provide a mitigation, State V. Pitti , 116 H.J. 580, 604-05 ( 1 9 8 9 ) , a defendant who ir provoked by battery or threat8 of rerious harm will receive a mitigation based on parrion/provocation. See, -8 State v. Co , 119 pS.J. 191, 224-26 ( 1 9 9 0 ) ; State V. pitta, 116 p.J. a%05-06; State V. B U 225 P.J. SUDOr 596, 604 (App. Div. 1 9 8 8 ) . Givon thoro judicial decirioni on provocation, if tho Logirïature war8 to provido a mirtaken jurtification dafonro for civilianr it would bo necorrary to ravir. tho law of provocation to avoid inconrirtoncy and overlap. Such a revirion ir far beyond tho rcopa of tho ChArtg8 given to thir Tark Porca. Furthor, a rignificant majority of the members of tho Tark Porco boliovo that privato citizanr, who unlike officar8 u a undat no logal CompuhiOn to u88 forca, have less naad for mitigation b8.d on mirtaken uro of force, State V . 29 pS.J, 27, 36 ( 1 9 5 9 ) . Howover, thrao membors of the Tank Fosca do not 8 h ~ thir 8 view. . m, 143 Tha approach ir riallax to that 8dvurc.d in the Model Panal Coda and initially proposed by tho N e w Joraoy Criminal Law Ravirion Conœ~inirfon. Saa Model Panal Coda m o c . 3.09(2); rion R m , note 20 at 82-83, 94-95. Saveral jurirdictionr hava followad tho Modal Panal Codo on thir point. Sa., ..Q., Ark. Coda Jim. mec. 5 - 2 - 6 1 4 ( 1 ) ; 0.1. Code Ann. tit. 11, 8.C. 470(a); Hawaii Rev. Stat. roc. 7 0 3 - 3 1 0 ( 1 ) ; Ky. Rev. Stat. Ann. sec. 503.120; He. Rev. Stat. Ann. tit. 17A, rec. 124 This narrow mitigation for officers who believe, albeit unreasonably, that they are required to act in the performance of their duties is important to ensure that they, like private citizens, are punished for culpability. 144 a crime that is consistent with their Further, the mitigation is necessary to properly diatinguirh among officers . Current law improperly equates the eeriousness of a crime committed by an officer who makes a grave error in judgment with the seriousness of the crime committed by an officer who kills or injures without a belief in the need to inflict serious injury. While both deserve punishment, they do not dererve the rame punishment. Laws defining when and how much force may be used in law enforcement, together with those that define the extent of a law lO(3); Neb. Rev. Stat. mec. 28-1414(2); N.D. Cent. Code sec. 12.1-OS-08; Guam Crim. L Corr. Code rec. 7.96(b). Others provide a mitigation from murder to manrlaughter. Sae, g . u . , Ill. Ann. Stat. ch. 38, para. 9 - 2 ; 18 Pa. Cons. Stat. Ann. sec. 2503(b). Otharr provida A r p c i a l nirrnrïaughter offanre that applies to p r r o n r who unnocarrarily kill while rerirting unjustified aggrerrion. Sa., ) . u . , F ~ A .Stat. Ann. rac. 728.11; Miss. Code Ann. roc. 97-3-31; Okla. Stat. Ann. tit. 21, roc. 711(3); Wis. Stat. Ann. 8.c. 940.0S0 U4 If thara ir concern that thir mitigation will be too earily hvokod, it could ba addressed, ar it ir elsewhere in the Coda, by requiring 4 dafandant to artabïirh hi8 ontitlenient. See, 2Ct2-8d. (intoxication defense w r t bo artablirhed by clear and convincing ovidanco); 2C:2-12b0 (antrapmnt dafenre must be artablirhad by a propondorance of tha ovidanca). The burden of proving thir mitigation, which doar not nogative an element of tho offanro, could bo rhfftad to tha defendant. See patters on v . Bow Yo& 432 p.S. 197 (1977). By p u i t y of conriderationr, howover, i f difondantr aro r8quir.d to aatablfrh thir mitigation, then it would r o a appropriate to require dafandantr to establish tho groundr for a mftigation based on parrion/provocation. 125 enforcement officer's duty to act and the extent of a suspect's duty to rubmit, embody difficult and critical public policy judgments. They state society's determination of the proper balance of its interests in preventing crime, apprehending criminals, protecting the public safety and preserving individual rights. Given the w o r t a n c e of statutes governing the use of force, to both law-abiding officerr and law-abiding citizens, the Task Force recommends the following reform. A. Clarity Current statutory rules governing when and how much force may be used by law enforcement officers are too complex and technical to be applied, as they must be, under tenre, uncertain and rapidly-evolving circumstances. Current detailed ruler and exceptions ahould bo replaced with general comprahenrible standards of the rort met forth in Appondix A. Current rtatutory ruler defina appropriate force in t e m a of the officer's reasonable belief. This causes confusion between conduct that ir conrirtent with the rules and conduct that an officer reasonably, but mistakenly, believes is conrimtant with the rules. Issuer of appropriate force and reasonable belief should be reparated to anrure that both the public and other officerr understand the distinction between conduct that ir justified and appropriate and conduct that, although inappropriate, i s excur8d due to rearonable mirtake. i Current law includes ieparate defensa8 for self-defense, defense of others and defense of proprty. To eliminate confuaing crorr-references and to avoid unnecearary roptition there defenre8 rhould ba combined. E. CY with C o n r t r t u w St- Statutory provirions describing when and how much force u y bo u r d in furth8rance o f law enforcemont are inconsistmt with controlling conrtitutional rtandards. In order to enrura that N8w Jerrey law noithar authorizes forca that violator tha conrtitutional rights of it8 citizen8 nor pUni8h.8 it8 officer8 for the use of force that ir con8titutionally prmirribìe, rtatutory law should be revised to conform with conrtitutional 126 - standards. C. -al * Liabilitv Commensurate with CuïDabilitv . Current law does not distinguish between officers who injure or kill, without justification, and officers who cause injury or death because they believe, albeit unreasonably, that performance of their duty or preservation of their life requires the use of force. In recognition of the fact that officers are under a legal compulBion to enforce the law and perform this duty under difficult circumstances requiring split-second judgments, statutes should be revised to provide for appropriate reductions in degree of criminal liability when an officer c o d t s an offense because of a recklesr or negligent belief that circumrtances justifying his conduct exist. An analogous mitigation, passion/provocation, is provided for private citizens. D. Public Policv Judments noted above, the proper formulation of the laws we have reviewed involves difficult quartions of public policy concerning the proper balance of the intererte in preventing crime, apprehending criminals, protecting t,he public safety and preserving individual right8. For this reason the Task Force recommends that the Attorne!Y General consider soliciting additional public opinion on the following issues: As l i 1. Should the right to urne force to resist an unlawful arrest be limited to instances where the force employed threatens serious bodily injury. 2. Should law enforcement officers be absolved of the duty to arrest person8 who resist or flee. 3. Should the law be revired to i m ~ o s estrict sanctions for non-compliance with orders to halt or submit to arrest. Eo A. i n tha part, the Attorney General should revise idalinas governing the uso of force to reflect changes th8 law. E Po Training program should be xoviied, as they have been in the past, to keep pace with changes in the law. 127 APPENDIX A i Chapter 3 . -CIRWREULT. PRIXIPUS OF JUSTIFICATION . PROPOSED AMENDMENTS RELEVANT TO USE OF FORCE BY L A W ENFORCEMENT OFFICERS Section 2C:3-1 J u a t i f i c a ~ o nand Excuse A f f innative Defenses : C i v i l Remedies Unaffected: L i a b i l i t y f o r Causing Circumstances J u s t i f y i n g o r Excusing Conduct. 2C :3-3 Execution of Public Duty. 2c :3-4 Urre of Force i n Dtfenrre of S e l f , Others o r Property (Combinem 2C:3-4, 2C:3-5 and 2C:3-6). 2C :3-7 U 8 e of Force i n Law Enforcement. 2C :3-9 Mistaken Use of Force. 2C:i-11 Definitionrr. 128 2C:3-1. Justification and Excuse A f f h t i v e Defenses; Civil Causing Defense Conditions. das UMffwted; Liability for a. The justification and excuse defenses provided in this chapter-are affirmative defenses. b. A justification or excuse defense under this chapter does not abolish o r impair any remedy available in a civil action based upon the a m e conduct. c. Notwithstandin9 the provisions of this chapter, a person is liable for an offense if, acting with the culpability required for the c o ~ ~ d s r i oof n that offense, he causes conditions that would otherwise constitute a defense to the offense. 2C.3-3. Execution of Public Duty. a. Except as provided in sub8ections b. and C. of this section, conduct is justified when it is reasonable under the circumstances and ismediately necer8ary to accomplish a duty or function required or authorized by: (1) The law defining the duties or functions of a public officer or the assistance to be rendered to such officer in the performance of hi8 duties; (2) The law governing the execution of legal process; ( 3 ) The judgment or order of a competent court or tribunal; (4) The law governing the armed services or the lawful conduct of war; or (5) Any other provision of law hposing a public duty. b. The use of deadly force is not justifiable under this section unless exprersly authorized by law. c. The othar sections of thir chapter govern the use of forca upon or t a v u d the person of another for any of the purpora8 dealt w i t h in such sections. 2Ct3-4 On (Râpl- of Forca Fn Dofanse of S e l f , Another or Property. f0ri.r 2Ct3-4, 2Ct3-5 .od 2Ct3-6) a. An actor's w e of force, other than deadly force, against another person is justified when: (l)(a)The parson is uring or i8 about to use unjustified forca against- the actor or a third parson; or 129 i' (b) The perion, by unjustifiably entering, remaining on, damaging or taking, is or is about to interfere with property or premirem that are in the posaession or under the control of t h e actor or a person on whose behalf he acts; and ( 2 ) 'The force the actor employs is reasonable in relation to, and immsdiately necessary to protect against, the bodily harm or interference with property or premises threatened. b. An actor's use of deadly force against another person is Justified when: (1) The peraon is uring or ia about to uae unjustified force againrt the actor or a third person; and (2) The use of deadly force is immediately necessary to protect the actor or the third person against ( a ) death or serious bodily harm, or ( b ) a threat of bodily harm from a person who has unlawfully entered and who unlawfully remains in a dwelling. C. S p e c i a l Rules. ( 1 ) The ure of deadly force by an actor other than a public officer uring lawful force in the performance of his dutier ir not aimmediately necerrary" if: (a) The actor can avoid all risk of bodily harm to himself and the third perron by (i) complying with a demand to abrtain from action he has no legal duty to take, (ii) rurrendering personal property or premires to a person acting under an honest claim of right the person has made known to the actor, or (iii) retreating, unlerr he i r in his dwelling or the dwalling of th8 third person and the thrrat is pored by a person who ir not A cohabitant; or (b) The third porron would b. rquirad to comply, surrender or ret-t pursuant to rubsaction c.(l)(a) if he were defending hinuelf, a d the actor ha8 not attempted to cause the third parroa to do 80. (2) Except ar providad in paragraph (1) of this rubrection, no perron i8 r8quir.d to avoid harm thr8atrn.d by unjurtified conduct by refraining from lawful conduct or the performance of a legal duty or by taking action he ha8 no legal duty to take. 130 2Ct3-7. üre of Forca in L a w Bnforcciant. (CEAHGBS NOT SHOWN) a. A law enforcement officer's uae of force, other than deadly force, against another person i8 justified if the force employqd is reasonable under the circumstances and immediately n e c a s m q to the lawful performance o f a duty, including but not limited to conducting an investigation or search, effecting an arrest of the person, preventing the person's eacape from the custody of an officer or a detention facility, preventing the perron's codsrrion of an offense, or bringing under control an unlawful or dangeroùs situation in which the person is involved. (2) A law enforcement officer's use of deadly force against another person is justified when immediately necessary (a) to effect a lawful arrest, if the person againat whom the force ia employed would pose a substantial risk of death or serious bodily harm to any person if apprehension were delayed; ( b ) to prevent the c o d a a i o n of a crime, if the peraon against whom the force is employed ir about to c o d t a crime involving a substantial risk of inmediate death or serious bodily harm to any person, or (c) to prevent the parson's escapa from a facility or institution for confinement of perrons who have been charged with or convicted of a crime. b. A private citizen's use of force, othar than deadly force, against another person Ás justified if the force employed is reasonable under the circumstance and htediately necessary t o effect a lawful citizen's arrest of the person. 2Ct3-9. Bxcurr or Hitigation for nirtakmn -lief a. -re for Rusonable nirt.lts. if not jurtified, but he rearonably balieves justifying his conduct under thir chapter excused and ha8 a complete defense to any (m) an actor's conduct is that circumstances exist, the actor is offense. b. IUtfwtfoai for U B X W 8 O o l b l e #h+.)u. (1) If th8 conduct of a public officer acting in the of hfr dutiar ir not jurtifid, but the officer perfo-e reckloaaly balievmr that circumstancer justifying his conduct under t h i 8 chapter exist, the officer ir excused from liability for m y offenre other than an offenre roquirfng recklessness or negligence ar to m y elamont. (2) If the conduct of a public officer acting in the porfornunce of hir duties ir not jurtified, but the officer negligently believer that circumtances justifying his conduct under this chapter exist, the officer ir axcurad from liability 131 i for any offense other than an offense requiring negligence as to any element. 2C:3-l10 De*finitiona. (SWSTANTUU =SION: Changes Not Shawn) In t u 8 chapter, unlese a different meanhg plainly is required: a. Conduct is "unjustified" and an actor acts "unjustifiablyiq if hia conduct, including confinement or poasesaion, satisfies the objective elementg of an offense and is not justified under the provisions of this chapter. The terms do not include the conduct of a law enforcement officer effecting an unlawful arrest, unless the officer employa more force than necessary to affect the arrest. b. "Deadly force" means force that causes death or serious bodily harm o r creates a substantial risk of causing death. c. "Dwelling" meana any building or structure, though movable or temporary, or a portion thereof, which is for the time being the person's home or place of lodging. d . "Serious bodily harm" means bodily harm which creates a substantial riak of death or which causes serioua, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ or which results from an aggravated raxual or sexual assault involving the use or threatened use of force or a deadly weapon. e. "Bodily h a m " means physical pain, or temporary disfigurement, or impairment of physical condition, or the harm of confinement, restraint, sexual assault or sexual contact. f . The term "force" shall have its ordinary meaning and ahall include all conduct involving or throateninq bodily or serious bodily h a m . Phrares ruch ar use of force 'against another person" and-"againrt the actor of a third person" shall include force directed at property or premises when that force also involves or threatens bodily or serious bodily harm. 132 APPENDIX B SELECTED BIBLIWRAPBY JtepOrtm d AdMniatrative Materials (UI American Civil Libertiea Union, On the Line: Police Brutalitv and Its Remedies (April 1991). Christopher, W. , Argqdllea, J.A. , RcDort of the IndeDendent commr'srion on the Lor Anaeles Police DeDartment (1991). Department of California Highway Patrol Report, Citizens' Comblaint Inveatiuationq (July 1989). . International A88ociation of Chief8 of PoliCe, -a Policv (January 1989) int Review International A880~iatiOn of Chiefs of Police, Use of Force: ConceDt a and Isruer PaDex (February 1989). International Aarociation of Chief8 of Police, prol'eCt Rû8DOn re: Enternational Arr-iation o f Chrefr of Poìrce ResDond8 to the ce Bru talitv Irruq (October 1991) . New Jer88y Attorney General Robert J. Del Tufo Letter to County Prosecutors regarding Investigation of Citizen Complaints (AUgU8t 21, 1991). New Jarley Department of Law and Public Safety, Divi8ion of Criminal Jurtice, "Internal Affairs Policy and Procedure, ual: C u t e r 5 (1991). 'I Now Jarrey Departmnt of Law and Public Safety, Division of Criminal Jurtico, Police Training C d r r i o n , Baric COurre f o r Police Officora (1990) . Now Jet8.y Departmant of L a w and Public Safoty, Dividon of Cririnrl Jurtice, -8 Incident Invertiaation StanQgsd 0 (1988) - Now J o z ~ f fD o p u t n n t of L a w and Public Safety, Division of w -cation a Cr-1 Jurtico, u u a l P for Now JeLaw -e New Jorrey Dap.rtrP.nt of L a w and Public Safoty, yre of Porce cy for L a w w o r c e w n t t Seloct Porfororince Policier (1991). . 133 New York Civil Liberties Union, Police Abure: The Need for i Civilian Inved tiffation and ûversiuht (June 1990). New York State C o d a s i o n on Criminal Justice and the Use of Force, Report to the Governor (1987). Report from Citizens' Conunittee Against Police Brutality in the City of Pateraon to Mayor Paacrell e t al. (October 3 , 1990). Report of Teaneck Townrhip Council Subcommittee on the Form and Function of a Ci*lian Complaint Review Board (November 26, 1990) Temtbony of New Jersey Attorney General Robert J. Del Tufo before the United Stater COandd.on on Civil Rights (April 8, 1991) . United States Department of Jurtice, Bureau of Jurtice Assistance, preventina Law Enforcement Stress: The Oruanrza ' t'ron e s Rol* (1990) . ks and Periodicalq Bennett, L.A., The U n t a m ed Potential of Psvcholoaica J!b8rea8ment~,The Police Chief Magazine (February i990). Clede, B., New level8 of lothal force , L a w and Order (1990). Condrrion of Accreditation for Law Bnforcuwnt Agencies, Inc., Standards for Law Enforcement Aaenc ia@ (1988). Dix, G. E., -at Invertiaatorv Detentionr in Search and Seizuro Law, 1985 Duke L.J. 849 (1985). Fischer, E:, New m k DqDel finds abure of force bv ~ 0ice 1 not . t e u , Crinrfnal JU8tiCe Nowrïetter 18(11) (1987). wil Firher, W. S., et al, L i u i t v of New Jersev Police 9ffic-r t An Ov0nri.y , Criminal JU8ticO Quutorly lO(45) (?all 1989). Preyormath, W. R., 692 (1987). Excerr ive Porcq , 1987 Duke L.J. Police Powor to- K Fyfe, J . J., -a C r h i n a ï Law Bullotin 18(528) (1982). Gallup, A.M., fscal LaW ? & m r i w rav w l i c o brutautv f r m e n t Gallup Poll NOW8 S e m i c e 55(42b)(1991). w, - but not P.adlv ? ~ g c e tWhat we know , Journal of Police Scienca and Adminiatration lo( 2) (1982) Gellor, W.A., . 134 Gellcr, W.A., pol ice and dead l v f o r c e : A look a t t h e e m D i r i c a l t e r a t u. r-q , In F.A. E l l i s t o n h M. Fe l d b e r g ( e d s . ) , Moral 1 8 8 U e B r n P o l i c e Work (1987). H a l l , J.- C., Pol ice Use of Deadlv Force t o Arre s t : 9 Const i t u t i o n a l Stand& , F.B.I. Law Enforcement B u l l e t i n ( J u l y 1988). K i r k , Behind t h e S i l e n c e : Does Societv Condone Police B r u t a l i t y Ln Exchanue f o r G e t t i n u C r i m i n a l 8 o f f t h e S t r e e t , ABA J o u r n a l ( J u l y 1991 a t 45). - . a Kulowiec, D. J., F o u rt h Amendma n t Detemunana t h e Reasonable 5en-h of a Term StoQ, J o u r n a l of C r i mi n a l Law and Criminology, Supreme C o u r t Review 7 6 ( 1 0 0 3 ) (1985). - Maguirc, K., Flanagan, T . J . , e t a l . , Sourcebook of C r i m i n a l Justice Statistics 199O , The Hindlang C r i m i n a l J u s t i c e R e s e a r c h C e n t e r (1991). N i c o l e t t i , J., w C h i e f (1990) . , . u f o r De e r c a l a t i o n of F o r c e , The Police -. . F o u r t h -ent 1 C l a b s of Note, C o n s t i t u t i o n a l Law i v e Force in S e r z r n a Free C i t i z e n s Analyz ed Under E=-r i e c t i v e Rearonabìene88 S t a n d a r d e88ec v. Ga r ner, 2 0 S e t o n Hall L. Rev. 5 6 7 (1990). .. - Note , -na1 Law The R i a h t t o Run: Deadly Force and t h e F l e e i n u F e l o q I 11 So. Illinois Univ. L.J. 171 ( 1 9 8 6 ) . -t v o Note, N u a m Storm weqbite * 846 F.2d 8 3 4 I 6 2 Temple L a w Revi- . . rted S t a t e s v . 0 - 439 (1989). a s Seizure L a w Offi c e r ' r Use Procedyre Deadly Force Au-t Nond-our P l e d n u Fe l o n He14 V i o l a t i ve of Fourth m a n t , 17 Seton Ball L. Rev. 758 (1987) Note, 0 . Noto, nh.n P O U C O u80 BXCO8iive Force: Chooripu d of Li.bility i n J U 8 t i C 8 V. D 'u L a w R e v i e w 735 (1988). R8i8.t A O J O , b w V TRA1QS-&ction 5 ( 8 ) ( 1 9 6 8 ) . * Qarrworm Suit081 M. R., u80 of ?orco1 Te-80 The P o l i c e Chief (ûctobor 1991). Scharf, P.# The B St. J o h n ' s t o bia m a e s t i o n a I V. Garnor Raviewed, u tho B u m ( 1 9 8 3 ) . 135 a Conot i t u t i o n a l , 62 * . Stephen8, D. w., police Aue ncv Handlinu of Citizen m t s : A M o del Policv Statement police Executive Re8earch Forum (September 1981). Terriil! R. J. , ternat ive perce~tions of Indenendence in Civilian Ovegiuht, Journal of Police Science and Administration 17(2) (1990). Thompson, G.J. & Stroud, M.J., Verbal Judo. Redircctinu Behaviors with Word8 (1984) '. Walker, S., and Bumphua, V e t Civilian Re.view . of the Police: A Bational su*ev of the 5 0 Laruert Crtrea, University of Nebraska at Omaha, Department of Criminal Justice (April 1991) . Bon8 iunore V. Citv of New Y o r k , 521 P.SUDD. 394 (S.D. N . Y . aff'd, 6 8 3 F.24 635 (2d Cir. 1982). l l o c k v. State, 65 P.J.L. 1981), 5S7 (E. i A. 1900). Canton v. Barr il, 489 y e s . 381, 109 S e c t L1197 (1989). ! Davi8 v. Mason Countv, 927 L 2 d 1473 (9th Cir. 1991). am V. ConnoZ:I - u,c. 109 sect. 1865 (1989) -I BaveI v. Hudson Countv Board of Prcehol(App. Div. 1971). ven v. Mercer COuntx , 116 N.J.Suner. 21 217 J4oJ.SUDer. 614 (App. Div. 1987). Id v. Bnrnog 496 POS- at 99 (dtationß omitted) (D. N . J . 1980). - 62 N,J, 105, g e e . d e w , 414 Y.S. . 822 (1973). b 109 , H.JL 173 (1988) ar v. ~owns& 1989 ) w of Pirc..ta wav, 236 N.J.Sypcrr. r v. District of Co , 489 v . k % 5 , , 850 L 2 d 708 (D.C. Cir. 1988), Sectt 1339, 103 L.Ed.2d 8 0 8 109 (1989) 136 550 (App. Div. - ter80n v. N e w Yor$ i 432 U.S. 197 (1977). poìicqglgn'zt Benevolent A88ociation v . Townuhic, of Washinqton, L 2 d 133 (3d Cir. 1988), -cert. denied, U.S. , 109 S.Ct* 1637 (1989). State v. Bowens, 108 N . J . 622 (1987). S t a t e v. Cohen, 32 3.J. 1 (1960). S t a t e v. C o v l e , 119 3.J. 194 (1990). S t a t e v. Donovan, 132 N.J.L. 319 (Sup. C t . 1945). S t a t e v. Hoime8, 208 N.J.SuDer. S t a t e v. M u l v i h u 57 N o J . 480 (App. Div. 1986). 151 (1970). S t a t e v. Powell, 84 Y.J. 305 (1980). S t a t e v. Stevenq, 203 P.J.SuDer. S t a t e v. Wiuama I 29 N . J . Termebiee V. Garneg 59 (Law Div. 1984). 27 (1959). 471 U e S o 1, 105 S.Ct* 1694, 85 Jt.Ed.2d 7 (1985) -! Xeaoer V. Backenrack Water C o . , 615 F.SUDD. 1087 (D.C.N.J. 1985) 137 850