Investigation finds glaring issues with O.C. Sheriff’s Department’s force policies and training
The Orange County Sheriff’s Department’s use-of-force policies lack clarity, potentially risking the safety of the public and exposing the county to liability, according to a report from a county oversight agency.
The first public report by the Office of Independent Review also found that deputies are filing late or incomplete force reports, and training instructors have spread bias and endorsed violence.
The OIR oversees the county’s Sheriff’s Department, district attorney’s office, public defenders office, probation department and Social Services Agency. The small agency consists of executive director Sergio Perez and investigations manager T. Jack Morse, Jr.
Perez was appointed to the role last year after the office sat vacant for some time following several controversial years under two prior directors. The latter were criticized for being ineffective and maintaining too close of a relationship to the Sheriff’s Department.
Perez announced in early September that he would be probing into use-of-force policies among other county law enforcement issues.
The release of the public report comes on the heels of a confidential OIR report obtained by TimesOC that highlighted problematic force incidents and department policy issues, including a deputy holding his knee on the back of an inmate’s neck for more than two minutes and an inmate attempting suicide after being elbowed in the head by a deputy who later denied using any force when questioned by a supervisor.
That confidential report includes some of the information in the public report, including the Sheriff’s Department’s alleged failure to report out-of-policy force violations or unauthorized uses of force to Internal Affairs for investigation.
To investigate the force policies, training and practices of the Orange County Sheriff’s Department, the OIR analyzed force policies and procedures, attended training courses on use of force, reviewed hundreds of force incidents and reports, visited county jails and interviewed inmates and other stakeholders.
“Well-calibrated policies, training and practices are interrelated and equally important in preventing and addressing unnecessary or unlawful uses of force,” the OIR report says. “An incomplete or confusing force policy can deny deputies necessary information and needlessly frustrate accountability efforts. Poor training can mean good policies are unknown or misunderstood, neutering their benefits and leading to bad practices.”
Policy deficits in the Orange County Sheriff’s Department
The OIR report identifies glaring issues with the Sheriff’s Department’s use of force policy, which may contribute to deputies using force that is prohibited or outside of department policy. In particular, it takes issue with Policy 300, which largely governs the department’s use of force.
The OIR report says that much of the confusion with Policy 300 lies in its use of “authorized” force, which is used throughout the policy but is never defined. It’s also not clear how a deputy can determine if a force technique is authorized if it isn’t specifically mentioned in the policy, and the policy fails to adequately differentiate between unauthorized and alternative force techniques.
“For example, it is unclear whether a carotid restraint, which is unauthorized as required by state law, can serve as an ‘alternative’ method,” the OIR report says.
Also, a revision made earlier this year to Policy 300 could allow deputies to use unapproved weapons, possibly resulting in deputies using force that is prohibited or out of policy.
The added language allows deputies to “use alternative items or methods readily available to them, so long as the item or method was utilized in an objectively reasonable manner and only to the degree that reasonably appears necessary to accomplish a legitimate law enforcement purpose” when they “are unable to effectively use the tools, weapons or methods provided by the department.”
The report says that Policy 300 also fails to define when deputies can use warning shots. While it discourages the practice, it allows a deputy to use warning shots if the deputy “believes that they appear necessary, effective and reasonably safe.” However, the department does not provide instruction on when warning shots are necessary, effective and how they can be used safely, the report says.
The OIR outlines other policies that it says regularly provide insufficient information and direction regarding de-escalation, lack clarity on use of force and mischaracterize potentially lethal weapons.
In the wake of high-profile police killings, many police departments have made moves to address de-escalation, including the San Diego Police Department, which established separate de-escalation policies. However, the Orange County Sheriff’s Department does not have a dedicated de-escalation policy.
While the department made some updates to its de-escalation tactics earlier this year to be in compliance with state law, the OIR believes its policies do not align with best practices.
“Instead, department policies generally only provide passing references to de-escalation and ... some force-related policies even provide incorrect information about what de-escalation is and how it should be used,” the report says.
“De-escalate” is only mentioned once in the Sheriff’s Department’s more than 1,000-page court and custody manual.
“The Orange County Sheriff’s Department has strict policy governing the use of force to ensure it is used appropriately and in accordance with the law,” Sheriff Don Barnes said in an emailed statement. “In 2020, out of the 309,009 calls for service and thousands of other daily public interactions, force was used in the community only 372 times, or 0.1 percent of calls for service. Refinement of policies, practices and training must and does occur on an ongoing basis. Our policy development process includes an opportunity for comment by OIR staff.
“De-escalation is currently a component of our use-of-force policy, is part of our training, and is part of the day to day practice of deputies. In taking this approach, we are following the National Consensus Policy on Use of Force. De-escalation is trained on and used proficiently, but what matters is how de-escalation is used in practice. Commentary in the report shows an unfamiliarity with contemporary legislative changes and minimizes the extent to which de-escalation is utilized.
“I welcome oversight and am open to making changes to policy where appropriate, but I find the report to be lacking in substance and useful recommendations. The OIR perspective will continue to be considered, and evidence-based recommendations rooted in best practice will be adopted.”
Hiding from jail cameras, finger-tweaking and bias
The report identifies a number of issues with the training of Orange County sheriff’s deputies.
The OIR describes how one force instructor downplayed the importance of following all department policies and identified the uniform policy as one that “doesn’t need to be carefully read.” The OIR points out that the statement is particularly concerning and topical given the controversy that erupted after an Orange County sheriff’s deputy was seen wearing an extremist insignia during a Costa Mesa protest.
“This is untrue and does a disservice to OCSD deputies who are subject to discipline for policy violations, regardless of the genre,” the report says in response to the instructor’s statement. “... Training guidance that discredits particular policies may lead to some deputies to disregard them, increasing the likelihood that violations will take place.”
The report also says that trainers made statements that endorsed violence.
In one of the instances, an instructor was stressing the importance of understanding the significance of video recordings for reviewing force. The instructor described that when he worked in a county jail, it was important to know where cameras were located.
“In my day, you knew just where to go in order to tweak a problem inmate’s fingers while you were handcuffing them,” the instructor said.
The OIR report says that the instructor never said that the behavior he referenced was illegal and violated Sheriff’s Department policy.
People who were and are currently incarcerated in Orange County jails, and somebody formerly employed by the department, referenced similar treatment to the OIR. One former inmate told the OIR that a deputy subjected her to painful wrist and finger manipulation. Other current inmates mentioned similar stories, describing specific areas in the jails where deputies routinely conduct such behavior because of the lack of cameras. A former correctional services assistant told the investigators that deputies would “twist up” inmates.
The OIR report also says that instructors made statements during training endorsing bias.
One instructor was describing a vehicle stop he took part in and said of the driver, “He was dripping parolee, if you know what I mean.”
“This statement raises concerns of bias,” the report says. “Recruits are unlikely to understand exactly what proper and lawful factors, if any, might differentiate someone who is on, has been, or has not been on parole. They might see such an example as implicit encouragement to trust general, undefined instinct above the kinds of observable facts that are necessary to support a vehicle stop. Such anecdotes can serve as an invitation to engage in biased behavior.”
The report also pointed out that some instructors used language or concepts that could stigmatize people with mental health needs. One instructor provided information that could be used to unfairly classify people with mental health issues as potential murderers. He began his presentation with a slide with photographs of three convicted killers, which was titled “Danger to Others? Why do all mass shooters look like mass shooters?”
“The slide, and the instructor’s comments in class, invite the inference that peace officers can determine whether an individual is a threat to the safety of others based on the individual’s appearance,” the report says. “This idea is not only wrong, but it may serve to encourage individuals to discriminate against and mistreat others who are perceived to be mentally ill.”
Late and ‘sanitized’ force reports
The OIR report says that it identified 56 use-of-force reports that were filed late, including one which was filed 41 days late.
The finding led the OIR to infer that about 21% of the force packets between January and October 2020 contained one or more late force reports.
The International Assn. of Chiefs of Police states that force reports should be filed no later than the end of a police officer’s shift. The longer an officer waits to file a report can lead to memory issues and “hindsight bias,” the OIR report says.
The failure to file use-of-force reports on time draws parallels with the evidence mishandling scandal that the Sheriff’s Department has been embroiled in over the last few years. Orange County sheriff’s deputies were found to have booked evidence late or failed to book evidence at all but subsequently lied about it in reports.
“The timely reporting of force is a hallmark of law enforcement best practices,” the report says.
Force reports also lack necessary detail, the OIR report indicates, making it difficult to adequately assess the force being described in the reports.
The OIR report explains that deputies regularly submitted reports describing the lead up to a use of force as “tense, uncertain and rapidly evolving.” Lacking supporting descriptions, it’s difficult for reviewers to gauge why a situation was uncertain or tense. One specific report only stated that “force was used to control” the subject, failing to describe what force was used and why it was justified.
“The use of such general language and lack of detail make it difficult for reviewers to determine whether the force was reasonable and within policy,” the report says.
A majority of the packets that the OIR reviewed contained reports that didn’t describe relevant events that were likely known to the writer. Many of these reports described the behavior of the person being detained but not the actions of the deputy issuing the force.
When multiple deputies took part in a use of force, the ensuing report regularly only described the actions of the author of the report, rather than the actions of all the deputies who took part in the incident.
“For example, in one incident, the main reporting deputy wrote that he delivered two knee strikes to a subject’s torso during a struggle,” the report says. “At least four other deputies were at the scene and also wrote their own reports, but none of them mentioned the force used by the primary reporting deputy. While OCSD policy does not explicitly require such reporting, reviewers of force are placed at a disadvantage when details that enable cross-verification of accounts are omitted.”
Also, when multiple deputies filed a force report on an incident, the reports often referred readers to other deputies’ reports for more details. The OIR says this is problematic because it raises concerns that deputies are omitting important details from their reports, assuming that those details will be in their colleagues’ reports.
The practice could lead deputies to collaborate to create “sanitized” force reports that lack relevant information. This could prevent supervisors from being able to adequately review a use of force.
The OIR spoke with several current deputies who were concerned with this practice.
The report highlights a specific incident where four deputies were responding to a domestic disturbance call regarding a man with schizophrenia who was verbally abusive with his mother. When the man went outside and saw the deputies in the yard, he turned, went back inside and up the stairs. After the man failed to heed a deputy’s order to come back, deputies grabbed the man, pulled him downstairs and into a table. A vase was broken during the incident. The report says that deputies wrestled the man into handcuffs, detaining him for a mental health evaluation.
Deputies justified the force, stating that the man had access to weapons. However, the mother had told deputies prior to the incident that there were no weapons in the home and knives were hidden.
“Deputies did not clearly indicate in their reports any substantial de-escalation efforts or any attempt to call a mental healthcare professional to the scene,” the OIR report says. “Reports that lack these details are not likely to assist the department in understanding and improving its crisis intervention efforts.”
Failure to refer to Internal Affairs
In its report, the OIR also found that some supervisors did not refer deputies to Internal Affairs after finding that they had used force that was unauthorized or outside of department policy. A deputy isn’t disciplined until their action is reviewed by Internal Affairs. Instead, supervisors chose to provide counseling to the deputies.
Last year, more than 98% of use-of-force reviews were handled within a division and did not result in any discipline. Division reviews are generally less intensive, the OIR report states, and don’t always include interviews with involved deputies or witnesses to the incident.
“A failure to refer out-of-policy or unauthorized uses of force to Internal Affairs minimizes the severity of such force, ensures that the complexity of the investigation will be limited, and removes the possibility of discipline.” the OIR report says.
The lack of referrals to Internal Affairs may also skew the department’s data on force incidents.
The OIR report says that the Sheriff’s Department’s S.A.F.E. Division, which tracks use-of-force trends, categorizes all force incidents not referred to Internal Affairs as “within policy.” However, the OIR report shows that supervisors don’t always refer cases to Internal Affairs if an act is deemed “out of policy.” This skews the data compiled by the S.A.F.E. Division.
“As a result, S.A.F.E. wrongly concluded that 98.1% of all use-of-force incidents were within department policy, because it failed to include incidents in which supervisors found an out-of-policy use of force but which were not referred to Internal Affairs,” the OIR report says.
Recommendations
The OIR provides a number of recommendations to the Sheriff’s Department in its report, including that the department should consider developing a clear de-escalation policy, limit the circumstances in which deputies can use unauthorized force, stop allowing warning shots and more clearly define terms throughout its policies.
With regard to training, the OIR recommends the department create a de-escalation course for trainees, assess the hiring and recruitment practices of its instructors and more routinely assess its current instructors.
To fix the issues with force reports, the OIR recommends that the department should implement a recurring audit of force packets and the department should ensure that supervisors refer all qualifying force packets to Internal Affairs.
The OIR report lists several other recommendations that can be viewed here.
A history of ineffectiveness
The new report may be a sign that the OIR is working as an effective oversight agency, an attribute some say was long delayed.
When Perez was hired as the new OIR, he stepped into a position that had been mired in controversy since it was first approved in 2008, in response to the death of John Chamberlain, an inmate who was beaten to death by other inmates in an Orange County jail.
The OIR position had been criticized as ineffective by some and praised as necessary by others.
When the Board of Supervisors first created the OIR position, the mission of the office was to solely oversee the Sheriff’s Department, particularly focusing on problems in the jail system.
But it quickly descended into ineffectiveness, detractors say.
Attorney Stephen Connolly, who served as the first OIR, was criticized for his close relationship with the Sheriff’s Department.
In particular, he was roundly rebuked for not uncovering the jailhouse informant scandal.
In 2015, the Board of Supervisors added the District Attorney’s, Public Defenders, probation and social service departments to the list. Connolly resigned in 2016 amid the snitch scandal.
Attorney Kevin Rogan replaced Connolly after the office was empty for two years. Rogan had served as an assistant inspector general for Los Angeles prior to his hiring. His tenure as the OIR lasted less than a year.
Following his departure, the office was vacant for two years while the board considered how best to move forward with the position.
With a civil rights and constitutional law background, Perez believes his background holding law enforcement agencies accountable throughout the state has prepared him for the role.
“I am used to these complicated spaces where a lot of people bring a lot of expectations to the table and where there might be a lot of tension as you tread into sensitive areas,” Perez said in a prior interview. “Accountability and oversight often entails looking under rocks that haven’t been looked under before and kicking and shaking the tires of government agencies in all sorts of ways.”
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