New Denver Sheriff Use of Force Policy: Force Still OK to Stop Jism-Throwing

For the Denver Sheriff Department, cutting down on excessive force allegations makes both sense and cents.

Note that the City of Denver wound up paying a $6 million settlement to the family of Marvin Booker, who died in custody at Denver jail, and $3.25 million to Jamal Hunter in response to a lawsuit that contained revelations of porn, pot, drunkenness and brutality at the same facility.

And so, yesterday, with much fanfare, a parade of Denver officials unveiled a new use of force policy for the DSD that is designed to emphasize methods other than force to control inmates and forbids such actions in a number of cases, including the spewing of profanities and empty threats.

Not that force is off the table entirely. Indeed, the policy, on view below in its entirety, includes a list of occasions when force is justified, including to stop inmates from "throwing...any bodily substance including but not limited to saliva, blood, seminal fluid, urine and feces."

Among those who spoke at the press event was Denver mayor Michael Hancock, at whose behest the revamped approach was developed.

"This new use of force policy clearly outlines what the department and the residents of Denver expect of our deputies. Use of force, at times, is necessary in this line of duty, but excessive use of force will never be tolerated," he said.

"The completion of the new policy is a major achievement, but our work certainly does not end here," Hancock acknowledged. "We must ensure this is a policy we consistently train to, and overall, that we continue to implement reforms that support a culture of compassion and accountability in the sheriff department."

Also weighing in was Stephanie O'Malley, Denver's executive director of public safety.

“The creation of a new use of force policy that emphasizes de-escalation is central to the entire reform effort," O'Malley said.

"The 44 members of the action team responsible for the policy gave due diligence to the task at hand to ensure the final product reflects the expectations of the city and those of the community, while also recognizing that deputy sheriffs may have to use force."

The introduction to the use of force policy makes this same point. It reads in part:
The DSD’s goal is to use force avoidance techniques to promote the safety of deputies, inmates, and third parties and such techniques shall be used in lieu of force if time and circumstances permit. Nevertheless, the DSD recognizes that, in some circumstances, deputies are authorized to use force to accomplish legitimate law enforcement and detention-related functions. The authority to use force is an extraordinary power that must never be misused or abused. Accordingly, the community expects, and the DSD requires that, when force is necessary, deputies use only the least amount of force required to safely accomplish a legitimate law enforcement or detention-related function.
Since Patrick Firman was named Denver's sheriff in October 2015, controversial interactions between DSD personnel and inmates haven't been eliminated.

Note the death of inmate Michael Lee Marshall the following month — a slow, tragic incident captured on video that was released earlier this year.

And even if the highest profile settlements predated his tenure, Firman and his department have a great deal of skepticism to overcome. When asked about the policy, by 7News, attorney David Lane, a longtime crusader against law-enforcement brutality, pointed out that it isn't the first to address excessive force in Denver. “Marvin Booker died under their de-escalation policy,” he said.

In Lane's view,, “There’s a difference between writing down a bunch of flowery things and actually remaking yourself. It’s like 'Meet the new boss, same as the old boss' as far as I’m concerned.”

Look below to see excerpts from the policy featuring tactical options to avoid force and times when force may and may not be used, illustrated by photos from previous excessive-force incidents. That's followed by a 7News report and the policy document.

Tactical options include, but are not limited to:

(1) Planning prior to confronting an anticipated threat, including, but not limited to, a “Planned Course of Action.” (See section 6 of this Policy — “Planned Course of Action” or “Imminent Event” in the Detention

(2) Approach — Cautiously responding to a threat or potential threat; being aware of surrounding circumstances; and avoiding rushing into a situation unnecessarily.

(3) Communication — Effectively communicating with the subject and other involved deputies.

(4) Positioning — Establishing a position which allows a deputy to more safely engage and react to the threat or potential threat.

(5) Movement and Repositioning — Moving and changing positions, including movement to the rear to increase time, distance, and safety.

(6) Using Barriers — Using existing obstructions or placing obstructions between a deputy and the threat or potential threat.

(7) Containment — Confining the threat to a specific area.

(8) Using Cover — The use of any structure, vehicle, or other object to protect the deputy against the weapon employed by the threat or potential threat.

(9) Concealment — Approaching or engaging the threat or potential threat from a position which limits the threatening individual’s view of the responding deputy.

(10) Seeking Additional Assistance — Requesting assistance, such as a supervisor and additional deputies and/or civilian employees with specialized training, such as mental health professionals or deputies trained in crisis intervention; or requesting specialized equipment.

(11) Disengagement — Temporary or permanent withdrawal from confronting the threat or potential threat for tactical or other safety-related reasons.

When Force May Not be Used

Deputies are prohibited from using force:

(1) In response to an individual’s verbal swearing, insults, or threats without the present ability to carry out the threat.

(2) To punish, degrade, humiliate, discipline, retaliate, improperly coerce, discriminate against, or unnecessarily cause pain or injury to an individual.

(3) After compliance or control of an individual has been obtained.

(4) On a restrained individual, including an individual who is handcuffed, except when: (i) it is “reasonable and necessary” to gain compliance; or (ii) a circumstance exists that requires immediately stopping or preventing a restrained individual from injuring someone, including himself/herself, or escaping.

When Force Other than “Lethal Force” May be Used

When it is “reasonable and necessary” to use force pursuant to this Use of Force Policy, less lethal force may be used in the following circumstances:

(1) To prevent physical harm to deputies, individuals, or third persons, when there are no de-escalation techniques, tactical options, or other non-force options reasonably available, practical, or effective;

(2) To enforce rules, policies, regulations, statutory provisions, and/or court orders, where non-force options have proven ineffective and there is an immediate need for compliance;

(3) To prevent or stop the commission of crimes that pose a threat of physical harm;

(4) When an individual is engaging in active aggression or aggravated active aggression;

(5) To prevent the destruction of property that raises a significant safety or security risk;

(6) To prevent or stop the throwing or projection of any bodily substance including but not limited to saliva, blood, seminal fluid, urine, and feces;

(7) To prevent an individual from inflicting self-harm;

(8) To prevent the destruction of evidence of a crime. However, force may not be used to prevent the destruction of such evidence when an individual has already put the evidence into his/her mouth or is attempting to swallow the evidence. In such circumstances, medical intervention shall be sought rather than using force; or

(9) To stop or arrest under the limited circumstances in which such stops or arrests are authorized by the Executive Director of Safety in Department Order 2000.1J, Exercise of Authority as a Peace Officer to Stop or Arrest Suspects (or a Department Order that expressly supersedes Department Order 2000.1J as to the exercise of authority as a peace officer to stop or arrest suspects).

Denver Sheriff Department Use of Force Policy.pdf

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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts