San Diego Union-Tribune (Sunday)
LITTLE-KNOWN COMPANY HAS BIG ROLE WRITING POLICIES FOR POLICE
Lexipol has written thousands of policies in use nationwide
In June, the Carlsbad Police Department posted on the city website an updated policy directive that banned the carotid artery hold, and reshaped the department’s use-of-force policy to conform to a new state law that changed the legal standard for when force can be used.
The policy change was drawn up and formulated not solely by department leaders or city officials. Instead, Carlsbad relied on the work of lawyers at Lexipol, a little-known private company based in Orange County that over the past two decades has quietly become one of the most influential forces in policing across the country.
The company writes policies and provides other services under contracts with thousands of police agencies in 35 states. It claims to have written policies for 95 percent of all police departments in California, most of them small- and medium-sized agencies, like Carlsbad.
In San Diego County, Carlsbad is one of five agencies that use Lexipol for policy formulation in some way, according to a survey of California police departments published in a Texas Law Review article on the company. The others are Chula Vista police, San Diego Harbor police, National City police and Oceanside police, which the study said adopts some Lexipol policies in its manual.
The influence of Lexipol on local policing nationally has caught the attention of legal scholars and activists, who say that outsourcing policy-making to a private company is unwise. Critics also say the company’s policy approach is geared more toward reducing
legal liability for agencies and local governments, and not necessarily toward what are best police practices.
In a year of national protests against police abuse, close examination of police practices, and widespread calls for reform of issues ranging from use-of-force policies to police staffing and budgets, Lexipol’s work has come under scrutiny.
Earlier this year the the American Civil Liberties Union of Southern California filed a lawsuit against the Pomona Police Department, contending the department’s use-of-force policy does not comply with a state law that went into effect this year. That law changed the standard of when force can be used from “reasonable” to the higher bar of “necessary.”
While not a defendant, the ACLU noted that Pomona is a Lexipol client and the company’s model use-of-force policy does not incorporate the “necessary” standard under California law. A spokeswoman for Lexipol said the company’s policies are starting points, and that agencies are encouraged to customize and tailor their own policies as they see fit.
But that is still troubling, said Ingrid Eagly, a professor at UCLA School of Law and one of the authors of the law review article.
“Most of these departments in California have policies thought through, edited and approved by Lexipol,” she said. “They can customize it, but by and large they all have the standard language. To the extent that policy-makers are making these decisions, Lexipol is still playing a huge role.”
The law review article said the company “appears to be the most influential actor in police policymaking.” Many large departments, like the San Diego Police Department and San Diego County Sheriff ’s Department, devise their own policy manuals.
Lexipol, founded in 2003 by two former police officers — one of whom became a lawyer defending police in lawsuits — focuses on smaller and medium-sized departments that often don’t have the personnel to track and keep up with new laws and court decisions affecting policing.
“When the Supreme Court comes out with a new ruling, something on interviewing children or searching vehicles, to have someone’s eye constantly monitoring those is helpful,” said Mickey Williams, the assistant chief of the Carlsbad Police Department.
The city has paid Lexipol $98,875 since 2013. In addition to the 763-page policy manual, which is copyrighted by Lexipol, the company provides clients with policy updates, daily training bulletins and other services.
But critics say the company’s policies are geared to doing the minimum legal standard under the law, and as a private company the public is shut out from participating in the formulation of policies for its local police.
Lexipol, however, says that its policies align to current legal standards in federal and state laws, and that its policies are “legally defensible content” that protect departments in lawsuits.
“When we say we reduce liability, what that means is officers are doing the right things for the right reasons, because they understand what the policies are requiring of them,” said Mike Ranalli, a former police chief in New York who is now a lawyer and works for Lexipol.
“We write the policy to be understood and trainable to get officers to improve their decisionmaking if need be. And it has to conform with law. Too detailed a policy is not realistic,” he said.
In a webinar for clients in October 2019 posted on the company website, Lexipol co-founder Bruce Praet told listeners that in the company-written policies “rarely if ever will you see the use of the word ‘shall’ in our policies, because nothing in police work is black and white except the car you drive.”
That kind of vagueness is troubling, said Gerald Singleton, a San Diego civil rights lawyer who often sues police agencies. He said that policies that adhere to bare minimum standards can hurt public agencies in lawsuits that allege there is a pattern or practice of unlawful conduct in a department.
“When you have these very vague types of manuals that are written with an eye toward risk management, it creates problems,” he said.
In the same webinar, Praet said the new use-of-force law had actually changed nothing. “What is the new standard? The new standard is the exact same thing we’ve had for the past 50 years and that is Graham v. Connor objective reasonableness standard,” he said.
Praet was referring to a landmark U.S. Supreme Court case that laid out the standard that police could use force when it was deemed “reasonable” in light of all the facts and circumstances. Proponents of the California law said it changed that standard — and that is a debate that will likely have to be settled in court.
A review of use-of-force policies in policy manuals posted by agencies in San Diego County that are Lexipol clients show they use the same language, which said officers “shall only use that amount of force that reasonably appears necessary given the facts and circumstances perceived by the officer at the time of the event to accomplish a legitimate law enforcement purpose.”
Singleton scoffed at that wording. “I’m a lawyer, and I don’t know what that means,” he said. “The law is very clear. It says ‘necessary.’ There should not be any modifiers.”
Eagly said using a private company that copyrights its material can hamper public participation in formulating policies for its local police.
“We think of police departments as a public agency — especially now, in this current moment, when a lot of people are moving to rethinking policing and their policies,” she said. “If a department is subscribing to a private service that makes its own decision, it is unclear how you can participate in the policy making process.”
But the company said it provides a starting point for departments crafting a policy.
“We don’t dictate to agencies, this is what their policy must say,” he said. “We don’t have that ability. We say, here is our take on this. If you want to change it, change it.”