Police Chief pushes back on some Police Audit recommendations

From tasers to body-worn cameras to use of force warnings, the chief's remarks to the city council offered a glimpse into the myriad issues facing law enforcement

In 2020, in the aftermath of the George Floyd killing and resulting protests, the Sebastopol City Council ordered a civilian audit of the city’s police department.

At a special council meeting on June 17, 2021, the city’s consultant, attorney Jerry Threet, presented his report, Public Report on Independent Civilian Review of the Sebastopol Police Department. The report offered 140 recommendations to improve the Sebastopol Police Department. (See Threet’s report here.)

At the city council meeting this week, Police Chief Ron Nelson gave an update on the police department’s progress in implementing those recommendations. He said 120 of the recommendations had already been fully incorporated, and 12 were still in the works, due to be completed by June 1, 2024.

He then explained why he had decided not to implement the remaining eight recommendations. Regarding his objections to these, he said, “Some of those are due to budget and logistical issues. Others have to do with liability, practicality, and frankly, public safety concerns.”

The chief’s response to these eight items provided an interesting window into the issues facing law enforcement.

1. Should tasers be considered lethal weapons?

Threet’s report recommended that tasers be considered potentially lethal weapons:  “The policy should provide that Tasers and similar electric conduction devices should be considered potentially lethal force options. There should be more significant restrictions on the use of Tasers on vulnerable populations, such as those who may be under the influence of drugs or alcohol, mentally ill or impaired, overweight, or obviously in poor health or infirm.” (Recommendation 46.13)

Nelson pushed back on this, saying “It's true tasers can be lethal if they're used improperly, but so can batons, so can fists, so can a flashlight, boots and just about any other blunt object. Less lethal does not mean non-lethal,” he said.

“Tasers are not lethal devices,” he continued. “They have not been deemed by the courts as genuine lethal devices. To deem them as such is going to handcuff us a little more. Under the penal code…to use deadly force against somebody there has to be an imminent threat of great bodily harm or fatality… So it's going to inhibit our ability to utilize what's been proven to be a very, very, very safe and effective tool.”

“Yes, there have been fatalities, but there's also been 5 million field uses of the taser, and 99.75% of those uses have not even resulted in a serious injury,” he said.

Councilmember Zollman asked for the source of that information. Nelson replied it came from a 2018 study in the Journal of Trauma and Acute Care Surgery, noting that, “According to their study, ‘Conducted energy use was the force modality least likely to result in significant injury, over all other use-of-force tools.’”

2. Should the threat of force be considered a use of force in itself?

The Threet report suggested that it should: “The use of force policy should more specifically define what constitutes force, including both a general definition and an ‘including but not limited to’ list of examples of force. Among the examples of force listed in this definition should be any threat of force by an officer against a community member …” (Recommendation 46.19)

Nelson was remarkably unruffled by the claim that the threat of force is itself a use of force.  

“A warning is just that. It's a statement to a subject ‘Hey, we need you to comply with us. Just do what we are asking you to do’” he said.

“We try to be specific when we provide a warning: ‘We may have to shoot you if you don’t drop the knife,’” Nelson said. “To require a warning to be deemed a use of force is going to potentially expose us to more civil liability from excessive-use-of-force lawsuits.”

“Part of what police are taught to do nationwide is to have a presence and also to use your verbal skills before you have to resort to any physical type of force, so I think that that”—calling a warning of the use of force to be an actual use of force—"would be a mistake.”

Zollman asked if this would apply to someone going through a “mental health decompensation.”

Nelson replied that “We're required to use de-escalation tactics and whatever means are available to us, up to and including calling in additional resources,” such as crisis negotiators and mental health professionals in such cases.  

Should Sebastopol partner with a civilian oversight organization to decrease use of force incidents?

Threet’s report stated that “The SPD should partner with an independent, civilian oversight partner to analyze use of force data, seeking relevant opportunities to decrease use of force incidents” (Recommendation 46.26)

“I don't disagree with that necessarily,” Nelson said. “I think there has to be some parameters surrounding it, but the bottom line is there would be a cost to doing that. We're likely not going to be able to hire a civilian oversight person without significant costs.”

“And I always go to ‘What problem are we trying to solve?’” he said. “We've had no complaints regarding excessive use of force, no lawsuits, no settlements related to excessive force claims in the last decade that I'm aware of. We have relatively few uses of force per year. We had 12 in 2022.”

In discussing this, Councilmember Zollman agreed that the chief’s plan to have meetings with different marginalized groups could prevent problems and might make a civilian oversight position unnecessary.

4. Should there be a prohibition on kinetic weapons (e.g., rubber bullets, beanbag rifles, etc.) for crowd control?

Threet’s report called for “A prohibition on the use of kinetic weapon projectiles into a crowd for any purpose.”(Recommendation 48.5)

Nelson responded to this recommendation by saying, “The likelihood of that happening here in Sebastopol is extremely slim, thankfully. That's why we all enjoy working here.”

On the other hand, he said, “To restore order is a difficult, difficult task.”

He noted that recent legislation had put restrictions on the use of kinetic projectiles.

“We're now required by law that there's no indiscriminate use of these, whether it be chemical agents or kinetic energy projectiles, on masses of crowds. We’re required to give warnings. We’re required to provide exit points for people and to give warnings in multiple languages. We can't indiscriminately fire as police agencies once did. It's highly regulated.”

But he noted that crowds can get out of hand, especially when there are individual bad actors torching stores or otherwise causing mayhem. He said kinetic projectile weapons targeted at those bad actors are useful in these situations.  

In addition, he said if there was ever a violent mass protest in Sebastopol, he would need to call in outside reinforcements.

“We do not have the capability to deal with a mass situation such as that,” he said. “And if I were to put a blanket prohibition on the use of these tactics and these types of weaponry, we're on our own. Nobody's going to come to help us, I can tell you right now.”

Zollman again pressed him on the use of such weapons on the mentally ill, and Nelson reiterated the need for de-escalation in those circumstances and said the use of any weaponry in such a case would be a last resort.  

In the interest of time, Mayor Rich asked Nelson to shorten his answers for the remaining four recommendations and asked the council to hold any questions until the end.

5) Should the Sebastopol Police use digital video recording for interviews with suspects?

The Threet report suggests moving from audio to video recording for police interviews. (Recommendation 51.6) Nelson didn’t really object to this idea, except for reasons of cost and space. He said it was something he would look into if he could find a way to pay for it.

6. Should prior complaints about an officer be included in the investigation of current complaints against that officer?

The Threet report recommended that they should. (51.9) Nelson argued that each complaint should be investigated on its own merit, but said that, separate from that, the Chief would certainly take an officer’s previous complaint history into consideration when making a decision about their fate.

7. and 8. Should the policy on body-worn cameras state that failure to activate them would result in discipline and should officers be specifically made aware of that fact.

The Threet report recommended the following:

“Include in the policy a notice that the failure to activate a body-worn camera (BWC) where required, and without a reasonable explanation for such failure, will result in discipline.” (Recommendation 52.6)

and

“Communicate to officers that a violation of the BWC Policy will be considered a serious violation deserving of significant discipline.” (Recommendation 52.7)

At first Nelson objected to these recommendations, arguing that they were overkill. Failure to follow policy would naturally result in discipline, but you don’t have to say that in every section, he suggested—but comments from the council convinced him to retract his objection.

“I question the necessity, but I understand the council’s view on it as well. And I don’t have a lot of heartburn over it,” he said.

With that change, the council accepted Nelson’s report on the satus of the police audit recommendations.

See Police Chief Ron Nelson’s full report, “Status Report on Independent Police Department Audit Recommendations.” You can watch the city council video of this discussion, starting at the 58:10 mark.