Police evolve under ‘duty to intervene’ law
Winchester Police Chief William Fitzgerald says his department has updated its policies since the state’s law enforcement accountability bill was passed, but the reality is that his officers know “use of force should be one of the last resorts for an arrest.”
Like police departments across Connecticut, Fitzgerald is looking at policies, including the one under which police officers now are expressly required to step in when witnessing another officer using excessive force, as the “duty to intervene,” a section of the police reform bill passed into law by the legislature earlier this year, went into effect on Oct. 1.
State Senate President Martin M. Looney, D-New Haven, a cosponsor of the bill, noted that it was passed as legislators dealt with the “shock” of the death of George Floyd while being restrained by police in Minneapolis, with hopes of preventing such an incident from occurring in Connecticut.
“It‘s clearly geared for a situation like that,” said Looney.
Under the law, as described by the Office of Legislative Research’s analysis of the bill, police and corrections officers are required “to intervene and attempt to stop” colleagues “from using force that the witnessing officer objectively knows is unreasonable, excessive, or illegal.”
Under the law, if officers in such circumstances do not intervene, they can be charged with the same offenses as the officer inappropriately wielding force.
Officers also are required to report such inappropriate uses of force to their superiors, facing a potential 10-year prison sentence for hindering prosecution if they do not.
Law enforcement agencies and the state Department of Correction also are prohibited from retaliating against any officer who reports such incidents as part of the measure.
Looney said he had not heard of particular concerns from police about this section of the bill, though other aspects of the bill did raise concerns. One of those issues was government immunity; the law passed allows governmental immunity as a defense to a claim for damages when, “the police officer had an objectively good faith belief that such officer's conduct did not violate the law.”
Police in New Haven, West Haven, Bridgeport and Winsted said the new requirement on duty to intervene should not represent a dramatic shift for their respective departments.
New Haven Police Chief Otoniel Reyes, noting at the department’s recent Compstat meeting that the change was going into effect, said a version of the language already was included in the city department’s policies.
“There is nothing ... with regard to the duty to intervene that we did not already have incorporated into our policy. What we will be doing is making a standalone policy, to just to highlight the stipulations,” said Reyes. “But in terms of expectations and standards for the department, it’s one that we pride ourselves (on) for years now.”
Scott Appleby, emergency management director for the city of Bridgeport, pointed to the Bridgeport Police Department’s code of conduct, saying Deputy Chief James Baraja indicated the requirement was covered there before the new law.
While not expressly echoing the duty to intervene, the code of conduct requires officers to “act promptly to protect life and property, prevent the commission of a crime, and apprehend violators of the law.”
Capt. Joseph Murgo of the East Haven Police Department said the duty to intervene was added to the department’s policies as of Oct. 1. But the department already had mandated reviews of every use of force as part of a series of changes instituted after it entered into a settlement agreement with the U.S. Department of Justice in 2012, he said.
As part of a new review process instituted in July 2013, officers are required to report every time they used force, as are other officers at the scene, he said. A supervisor then is required to respond to the area, speak with witnesses and review body camera footage of the incident in question to determine whether the action was justified.
Murgo said the department has not had any instances in which a use of force went unreported since instituting this review process, and said he believed the change in state law would likely not have an impact on how local officers do their work.
“The overwhelming majority of police officers who kiss their families goodbye at the beginning of each day, go out and do their jobs fairly and treat people reasonably and with respect,” Murgo said in an email.
“I think we as a profession can all agree that there is no place in policing for officers who use their power to mistreat people,” Murgo said. “While this profession sometimes requires split second decisions in dangerous and confusing circumstances, our officers are recruited based on the values they hold and are trained and held to the highest standards. When those standards change, we as an agency change and evolve as well.”
In Winchester, Fitzgerald said his department had updated its use of force policy to reflect the prospective change after the accountability bill was passed, and has updated it multiple times since to reflect suggestions from the Police Officer Standard and Training Council.
Fitzgerald said the change would not have a significant impact in Winsted, as the department’s use of force policy already was stringent. For example, he noted, any time an individual resists arrest or a juvenile is handcuffed, officers are required to fill out a form noting the use of force. He and the patrol commander then review each report.
That level of oversight has multiple uses, he said: It protects the town against potential legal liability, tracks whether officers are following policy or having consistent issues, and ensures the department appropriately safeguards the public as it goes about its job of enforcing the law.
Policies, he said, are training tools for officers more than anything. He said the department regularly updates its use of force policy as different scenarios materialize, cognizant that this is an issue that has prompted concern around the nation, striving to ensure that officers use only the amount of force required to make an arrest.
“It’s not like the old days, when there was no accountability to any of this. ... We constantly reevaluate how we do business. ... We don’t want to be complacent,” said Fitzgerald
Under the previous version of Section 7-282e of the Connecticut General Statues, law enforcement agencies in the state were required to create and maintain records regarding incidents in which an officer “uses physical force that is likely to cause serious physical injury.”
The new law maintains this language, but also specifically designates force that “impedes the ability to breathe or restricts blood circulation to the brain,” among other acts of physicality, as something that requires such a record to be created.
The Police Officer Standard and Training Council on Sept. 25 issued a sample policy to departments regarding the duty to intervene.
That draft policy notes there “may be exigent circumstances” that prevent an officer from intervening in such a situation, including the possibility that they are trying to apprehend another individual, provide medical care for someone, or are “separated by space, elevation, physical barriers, terrain or other hazards or impediments.”