Title
Recommendation to Authorize Updates to the Existing Alameda Police Department Policy Manual to Conform with New Law and Best Practices and to Authorize the Chief of Police to Make Future Policy Updates Without Prior City Council Approval. (Police 10031100)
Body
EXECUTIVE SUMMARY
The Alameda Police Department (APD) contracts with Lexipol for the generation, retention, updating, and publishing of our policy manual. Part of the contract includes periodic review and revision of the policy manual to reflect current best practices, emerging case law, and new legislative changes/mandates. In additional Lexipol, the PD further engages in regular review and proposes policies modifications when operational changes occur or when the need for new internal procedures are identified. This report provides recommended changes to various policies based on legal developments and/or recommended best practices. This report also recommends that the City Council authorize the Police Chief to make future updates to police policies without prior City Council approval, which is in line with industry standards.
BACKGROUND
Before Lexipol, the PD operated on a set of General Orders that functioned as a policy manual for the Police Department. The APD and the City Attorney's Office were required to monitor evolving best practices, new case law, and changes in legislation. Those new practices and laws would then have to be distilled into a new or modified General Order, which would then be printed and disseminated for training at the APD. This was a time-consuming and cumbersome process that required a tremendous amount of City of Alameda (City) resources.
Approximately eleven years ago, the APD entered into an agreement with Lexipol to create, maintain, update, and publish a policy manual. Lexipol is a risk management company that specializes in the creation of electronic public safety policy manuals. It currently serves approximately 8,100 public safety agencies/municipalities. Last year, Lexipol reviewed about 9,000 legislative and regulatory changes to ensure the policy manuals it manages stay as current and comprehensive as possible. In addition, the pooling of resources caused by having so many public agencies obtaining their policy manuals from a single source and utilizing an easily changeable electronic format allows for near real-time policy manual updating and instantaneous notification to employees of updates. In short, using Lexipol has resulted in the PD's policy manual remaining more up-to-date, more easily accessible, and constantly reviewed by industry experts outside the APD.
Although the APD works with Lexipol for policy development and updates, the APD reviews Lexipol guidance and recommendations with an eye for our community’s expectations. The APD has the ability to use Lexipol recommendations as a baseline to create a more restrictive policy for implementation into operations, such as the Use of Force policy recommendations presented in this report.
Relating to general policy development and implementation, prior to June 2020, consistent with general industry standards, the Police Chief retained the discretion to update police policies. At the June 16, 2020 City Council Meeting, City Council directed a change to that policy, requiring “all Policing policy changes [] be brought to the City Council for approval before implementation, in the instance where changes in State or federal law or courts rule that change is required, changes can be made and brought to the next available Council meeting for ratification….” See Minutes of June 16, 2020 City Council Meeting. Since that direction, the City has hired a new Police Chief and the new Chief has commenced an overall review of policing policies in an effort to further enhance policing practices in Alameda.
DISCUSSION
The following APD policies need updating and recommendations are listed in numerical order:
218 - License to Carry a Firearm,
300 - Use of Force,
310 - Officer-Involved Shootings and Deaths,
468 - First Amendment Assemblies,
1000 - Recruitment and Selection,
1002 - Evaluation of Employees,
1060 - Line-of-Duty Deaths, and
1061 - The Wellness Program.
APD Policy 218 License to Carry a Firearm
The U.S. Supreme Court decision New York State Rifle & Pistol Association v. Bruen (2022) holds that any "good cause" requirement for the issuance of concealed firearms permit is unconstitutional.
The Supreme Court opinion held that states may still impose reasonable, well-defined requirements on:
(1) who may lawfully purchase or possess a firearm (e.g., felons or mentally ill people may be prohibited);
(2) licensing provisions such as background checks, training courses, and reasonable administrative fees may still apply; and
(3) certain types of weapons beyond those contemplated for self-defense may still be limited.
In a follow-up, the California DOJ issued a legal alert on June 24, 2022 (OAG-2022-02) with guidance that:
"... the Court's decision renders California's "good cause" standard to secure a permit to carry a concealed weapon in most public places unconstitutional. Permitting agencies may no longer require a demonstration of "good cause" in order to obtain a concealed carry permit. However, local officials can and should continue to apply and enforce all other aspects of California law with respect to issuing public-carry licenses. In particular, the requirement that a public-carry license applicant provide proof of "good moral character" remains constitutional. Law enforcement agencies that issue licenses to carry firearms in public should consult with their own counsel, carefully review the decision in Bruen, take the following guidance into account, and continue protecting public safety while complying with state law and the federal Constitution.
... In accordance with Bruen, the Attorney General now considers the "good cause" requirements set forth in California Penal Code sections 26150(a)(2) and 26155(a)(2) to be unconstitutional and unenforceable.
... issuing authorities should continue to apply and enforce all other aspects of California law with respect to public-carry licenses and the carrying of firearms in public. Issuing authorities are still required to take an applicant's fingerprints and to wait for the results of the background check that is run by the California Department of Justice (DOJ). Licenses "shall not be issued if the [DOJ] determines that the person is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm." Cal. Pen. Code section 26195(a). Moreover, because the Court's decision in Bruen does not affect the other statutory requirements governing public-carry licenses, issuing authorities must still require proof that (1) "the applicant is of good moral character," (2) the applicant is a resident of the relevant county or City (or has their principal place of business or employment in that county or City), and (3) the applicant has completed a course of training. Id. sections 26150(a), 26155(a). Issuing authorities may also still require psychological testing. Id. section 26190(f)."
The full legal alert may be found here: <https://oag.ca.gov/system/files/media/legal-alert-oag-2022-02.pdf>
Changes to APD Policy 218 to reflect this new case law are as follows:
• "Good cause" requirements or references have been deleted in QUALIFIED APPLICANTS, PHASE ONE (TO BE COMPLETED BY ALL APPLICANTS), PHASE TWO, REVOCATION OF LICENSES, and LICENSE RENEWAL.
Unrelated to the U.S. Supreme Court decision, additional changes include:
• In ISSUED FIREARMS PERMITS, a Lexipol formatting error has been corrected.
• Due to a Lexipol error, LIMITED BUSINESS LICENSE TO CARRY A CONCEALED FIREARM will be flagged for deletion. Lexipol automatically adds all new sections to the bottom of the policy, so as not to alter any agency-specific customization. To move the new section to the location Lexipol recommends (below APPLICATION PROCESS), first, accept all updates. Serial commas have been added in updated sections
APD Policy 300 Use of Force
Although current policy is in line with industry standards and best practices, staff has added language under section 300.2 that emphasizes minimal reliance on the need to use force by utilizing rapport-building communication, crisis intervention, and de-escalation tactics. Additionally, language on arrests has been added.
Under section 300.2.2, staff has added prohibition of force rooted in bias and includes consequences of such actions.
Under section 300.3.5, staff further prioritizes de-escalation and provides clear definitions on specific strategies and tactics to accomplish de-escalation. Additionally, this section provides guidance on considerations when dealing with vulnerable populations.
APD Policy 310 Officer-Involved Shootings and Deaths
This policy has been updated because a new Wellness Program Policy has been added to the manual. Changes to this policy include:
In INVOLVED OFFICERS, content has been removed and relocated to the new Wellness Program Policy.
A policy reference has been added to DEBRIEFING.
CRITICAL INCIDENT STRESS DEBRIEFING has been deleted, and its relevant content moved to the new Wellness Program Policy.
Unrelated to the Wellness Program Policy update, additional changes include:
Grammar has been corrected in PURPOSE AND SCOPE.
In CRIMINAL INVESTIGATION, an inapplicable citation and gendered pronouns have been removed, a serial comma has been added, and the Edit Level has been changed from "State" to "Best Practice."
APD Policy 468 First Amendment Assemblies
This policy has been updated because California POST expanded guidelines related to this policy. The update should be accepted and implemented as soon as possible. Changes to this policy include:
• In USE OF KINETIC ENERGY PROJECTILES AND CHEMICAL AGENTS FOR CROWD CONTROL, additional content has been added to include all the requirements of Penal Code section 13652.
Unrelated to the POST guidelines update, additional changes include:
• In PHOTOGRAPHS AND VIDEO RECORDINGS, spacing has been corrected, and serial commas have been added.
• A policy reference has been corrected in MUTUAL AID AND EXTERNAL RESOURCES.
• Spelling has been corrected in USE SUMMARY.
APD Policy 1000 Recruitment and Selection
This policy has been updated because regulatory action impacts its content. New laws require background investigators who perform background checks on peace officers and public safety dispatchers to complete POST-certified background investigator training. Changes to this policy include:
• INVESTIGATOR TRAINING has been added as a subsection in BACKGROUND INVESTIGATION to include the training requirements. Lexipol automatically adds all new subsections to the bottom of the section as not to alter any agency-specific customization.
APD Policy 1002 Evaluation of Employees
This policy has been updated because of a new software acquisition that retains employee performance evaluations. The numeric numbering system and rating classifications have changed. Further, the new policy allows for more manageable evaluation deadlines distributed evenly throughout the calendar year, rather than one agency-wide date for all employees.
APD Policy 1060 Line-of-Duty Deaths
This policy has been updated because a new Wellness Program Policy has been added. Changes to this policy include:
• Terminology has been updated in LIAISONS AND COORDINATORS and SURVIVOR SUPPORT LIAISON, and punctuation has been corrected.
• CRITICAL INCIDENT STRESS MANAGEMENT COORDINATOR has been renamed WELLNESS SUPPORT LIAISON and has been updated to advise collaboration with the agency wellness coordinator instead of the agency head. Also, terminology has been changed, and punctuation has been corrected.
Related to the Wellness Program Policy update, additional changes include:
• In MUTUAL AID COORDINATOR, punctuation and a policy reference have been corrected.
• In BENEFITS LIAISON, punctuation, grammar, and list formatting have been corrected.
APD Policy 1061 Wellness Program
This new policy has been developed to provide guidance on establishing and maintaining an agency wellness program to support a healthy quality of life for agency members. Highlights include:
• POLICY communicates the agency's commitment to member wellness.
• WELLNESS COORDINATOR identifies the primary responsibilities our wellness coordinator, including establishing procedures for agency peer support and Critical Incident Stress Debriefings, verifying members have reasonable access to wellness support, and facilitating the delivery of wellness information and training to members.
• PEER SUPPORT MEMBER RESPONSIBILITIES and PEER SUPPORT MEMBER TRAINING provide direction on the duties and training of our peer support members.
• CRITICAL INCIDENT STRESS DEBRIEFINGS contains content that has been moved to this policy from the Officer-Involved Shootings and Deaths Policy. The updated content includes guidance on when such debriefings should occur, who should organize them, and attendance and confidentiality requirements. Peer support communication content has been consolidated to include all Critical Incident Stress Debriefings, including those that occur after officer-involved shootings.
• PEER SUPPORT COMMUNICATIONS addresses communications between members and peer support providers.
• PHYSICAL WELLNESS PROGRAM includes guidelines for agencies that implement a physical wellness program.
• WELLNESS PROGRAM AUDIT provides for a system of periodic review and revision of the wellness program to improve its effectiveness.
• TRAINING provides topic guidance for agency wellness training.
AB 1117 enacted the Law Enforcement Peer Support and Crisis Referral Services Program (Government Code section 8669.2 et seq.). The law authorized a local or regional law enforcement agency to establish a peer support and crisis referral program to provide an agency-wide network of peer representatives available to aid fellow employees on emotional or professional issues. This policy provides best practices unrelated to the California Law Enforcement Peer Support and Crisis Referral Services Program.
Policy Development and Approval Process
APD operations are governed and guided by Department policy. Changes in case law, POST guidelines, industry standards, and best practices could and do occur with high frequency and on a daily basis. Internally and through existing review processes, the APD could become aware of an immediate need to make minor or major updates/changes to existing policy. In other instances, there may be the need to develop new policy.
These changes often call for timely implementation and are, ultimately, the responsibility of the Chief of Police for dissemination without delay. Delayed implementation or failure to maintain up-to-date standards could lead to undesirable outcomes.
Knowledge of changes in case law, POST guidelines, industry standards and best practices but delayed implementation is undesirable because it is difficult to hold personnel accountable to standards that are not formally codified in policy.
The Chief of Police understands the genesis of the current policy development/approval process and holds the highest reverence for transparency and accountability. Simultaneously, there’s a need to balance process with operations and liability. Accordingly, it is recommended:
1) City Council rescind its June 16, 2020 direction and authorize the Police Chief to implement police policy changes without requiring prior Council approval.
2) All policy changes will immediately be made public through the City/APD website in line with Senate Bill 978.
3) Chief of Police will report policy development and changes to the City Manager for City Council updates.
ALTERNATIVES
• Approve the policy updates and change the policy review direction
• Approve the policy updates but do not change the policy review direction
• Do not approve the updates or change the policy review direction
FINANCIAL IMPACT
There is no financial impact from approving the policy updates from Lexipol. Funding for the Lexipol contract is currently included under the Police Administrative Services Division budget.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
The policy referenced is from the APD Policy Manual, as published by Lexipol. See the Discussion section for the policy number.
ENVIRONMENTAL REVIEW
The California Environmental Quality Act (CEQA) applies only to projects that have the potential for causing a significant effect on the environment. This action is not a project pursuant to Public Resources Code section 21065 and CEQA Guidelines section 15378.
CLIMATE IMPACT
There are no identifiable climate impacts or climate action opportunities associated with the subject of this report.
RECOMMENDATION
Authorize the Chief of Police to update the existing Alameda Police Department Policy Manual to conform with new law and best practices and to make future updates in line with industry standards to mitigate risk.
Respectfully submitted,
Nishant Joshi, Chief of Police
By,
Matt McMullen, Police Captain
Financial Impact section reviewed,
Margaret O'Brien, Finance Director
Exhibit:
1. Draft Policies
cc: Nancy Bronstein, Interim City Manager