More than 25 Seacoast police departments and two county sheriff offices have fully disclosed their use of policies following a request from Seacoast Media Group.
A review shows out of the 27 agencies that provided policies, 14 explicitly prohibit neck restraints and choke holds unless deadly force is warranted. Six others have policies that less explicitly restrict any tactics that could cause “positional asphyxia.”
Many of the departments also mandate their officers intervene if they witness excessive use of force by a fellow officer.
Police protocols specific to use of force and officer intervention are under both national and international scrutiny following the police killing of George Floyd in Minneapolis, Minnesota. Floyd’s May 25 death, for which now-former police officer Derek Chauvin is charged with murder, has brought the Black Lives Matter movement to a boil across the world.
Some of the Seacoast departments that responded to SMG said they’ve recently added language about choke holds and intervention or are in the process of doing so, specifically because of the officer misconduct in Minneapolis.
At least two police chiefs were transparent that the request for their policy prompted a review and then changes.
Other Seacoast department policies are less robust, and without verbiage specific to choke holds, neck restraints or any tactics that could cause positional asphyxia.
Not all departments explicitly spell out a “duty to intervene,” and many have varying review processes for officers involved in use of force incidents.
New Hampshire’s actions in wake of Floyd protests
As local departments review their policies and reaffirm training due to national dialogue about excessive force, there have been recent developments at the state level.
The New Hampshire Senate voted this week to approve a bill outlawing the use of choke holds by police. The bill also mandates officers report misconduct by fellow officers.
Gov. Chris Sununu announced June 16 the formation of a state Commission on Law Enforcement Accountability, Community and Transparency, which will be expected to generate a report and recommendation within 45 days.
The state attorney general’s office recently hired a first-ever special investigator for officer-involved use of force incidents. The position was created within the state budget approved last September, according to Associate Attorney General Jeffery Strelzin.
“It’s something that’s been talked about for several years,” Strelzin said. “That person will work as a criminal investigator, but will also accompany the prosecution team out to officer-involved use of deadly force investigations and work with the investigative team as an asset.”
Strelzin explained in New Hampshire, the attorney general’s office exercises general supervision of officer-involved use of deadly force investigations that cause death or serious bodily injury, specifically.
The state House of Representatives passed House Bill 1257 in March that would create a citizens review board for attorney general investigations of officer-involved shootings. The bill is currently in the Senate.
Use of force
Use of force is sometimes necessary for police officers to make arrests, defend themselves or the public. Displays of force can range from physical restraint, to deployment of pepper spray, to a fatal shooting.
It’s more specifically the topic of excessive force that has law enforcement as a profession under fire across the country, especially against Black people and other people of color.
A 2018 report by the U.S. Commission on Civil Rights concluded accurate and comprehensive data regarding police uses of force is generally not available to police departments or the American public.
“No comprehensive national database exists that captures police uses of force,” the report stated. “The best available evidence reflects high rates of uses of force nationally, with increased likelihood of police use of force against people of color, people with disabilities, LGBT people, people with mental health concerns, people with low incomes, and those at the intersection of these communities. Lack of sufficient training — and funding for training — leaves officers and the public at risk.”
The Washington Post reported this week that the FBI launched a database on police use of force last year, but only 40% of police participated.
Police training in New Hampshire
The New Hampshire Police Standards and Training Council is the sole training agency for all New Hampshire law enforcement and correctional officers.
John Scippa, former Stratham police chief and now director of NHPSTC, recently penned an open letter to address the three most frequent questions he’s been asked since Floyd’s death: police training in the area of use of force, police training as it relates to diversity, and police training in the area of communications and de-escalation.
The New Hampshire Police Academy does not teach any sort of choke holds, strangle holds or neck restraints as part of any recruit or in-service instruction, Scippa said.
The academy does require all recruit officers successfully complete a block of instruction on ethics in policing, “as well as a number of different types of use of force classes, all which cover communications and de-escalation techniques.”
“Further, we have offered in-service programs on communication and de-escalation techniques for active New Hampshire police officers,” Scippa said. “All recruit use of force classes mandate that de-escalation be attempted whenever safe for the officer to do so.”
Scippa noted a “deep review” of cultural dynamics and communication classes is ongoing, featuring input from academic and police leaders, and the American Civil Liberties Union. Findings will provide guidance on any necessary curriculum changes, he said.
Review of Seacoast police policies
Portsmouth, Dover, Rochester, Exeter, Greenland, Stratham and Kittery, Maine, are among the departments with the most robust and specific of policies, based on a review by SMG. Nearly all departments reviewed have a use of force continuum in their policies, defining the types of force/weapons that can be used to respond to specific types of resistance.
Recent revisions to Portsmouth’s policy, which is instead called a “response to resistance” policy, specify de-escalation strategies, prohibition of choke holds unless deadly force is authorized and a duty to intervene.
“When possible, officers should seek to utilize de-escalation strategies to prevent situations from deteriorating to the point where they would need to use force,” Portsmouth’s policy states. “Officers should attempt to gain voluntary compliance in an attempt to reduce the level of force required in a situation through verbal communication efforts. When force is applied, officers will use the minimum amount of force necessary to overcome an individual’s resistance and to gain control.”
In the aforementioned departments, strangle, choke and other similar holds “are prohibited except when the officer reasonably believes there is an imminent threat of serious physical injury or death to him/herself or a third person and that he/she has no other reasonable alternative for defending himself/herself or another person.”
“It’s a last resort,” Dover Police Chief Bill Breault said, stating his department’s explicit restrictions on neck restraints have been in place for decades. “It’s a deadly force situation. Any other time, a neck restraint or choke hold for any reason is prohibited by policy.”
Dover’s policy prohibiting neck restraints in non-deadly force situations states “choke holds, neck restraints and other similar techniques are documented to have caused unintended death and serious unintended bodily injury when used by police officers. As such, their use is prohibited by this policy.”
Portsmouth Police Chief Robert Merner noted “even the best policy in the world” cannot encompass every situation an officer may find themselves in.
“These split second things cannot all be written into a policy,” Merner said. “We don’t have anything in our rules that says, ‘I can’t stick my thumb in your eye,’ however, if we’re hands-on and a subject is about to choke me out, then I better put my thumb in his eye to save my life and the lives of others. These are always the ‘what ifs.’”
Good use of force policies also can’t regulate an individual with questionable tendencies, Merner said.
“I watch the George Floyd video and I want to throw up,” he said. “All of the amount of training in the world can’t fix that (officer). That’s the human being.”
Breault emphatically agreed.
“Enforcing the law and treating people with dignity, respect and compassion should not be mutually exclusive,” he said. “Unfortunately, because of the wrongful actions of bad cops, people are starting to form the opinion these two things are mutually exclusive. They absolutely are not.”
Many local chiefs said their departments are always updating policies and looking at best practices.
“The whole idea of de-escalation is to resolve the situation without using any force, or what we call ‘de minimis force,’ for the safety of the public, the subject and the officers,” Merner said.
Exeter Police Chief Stephan Poulin said he recently made minor revisions to the department’s policy with suggestions from sources such as Campaign Zero, a police reform campaign.
“While we always banned choke holds as a ‘non-trained technique,’ I saw the need to actually spell it out,” Poulin said. “This is the same for officers intervening. Always inferred but I spell it out now.”
“Choke holds, strangleholds (i.e. carotid restraints) are prohibited,” Exeter’s policy reads. “The use of any force shall stop once compliance or control has been achieved. Officers are to intervene to stop other officers who are using excessive force and immediately report them to a supervisor. Once a situation is under control, officers shall immediately render medical assistance to anyone in police custody who is injured, or who complains of an injury, and request an ambulance to respond as appropriate. All incidents involving use of force will be separately documented in a use of force report. This is in addition to any arrest or offense reports.”
The Rye Police Department’s policy includes the same language as Exeter’s.
Barrington Police Chief George Joy said his department is working to add similar language. Joy said these types of policies should be reviewed regularly and fully transparent so any person looking at police misconduct elsewhere in the country can access their local policy and see “point blank this will not happen.”
“Most of the active use of force policies in New Hampshire… don’t have (choke holds) mentioned because it’s a no-go in New Hampshire,” Joy said. “We never trained that way. It’s common knowledge… that is a response to deadly force only.”
Most of the responding departments’ policies state deadly and non-deadly force, including restraint techniques, should stop once resistance is overcome.
“An officer should only use that amount of force that is reasonably necessary to effect the arrest or detention or prevent the escape of the suspect in question,” Somersworth’s policy reads.
Kittery Police Chief Robert Richter said the Maine Chiefs of Police Association has mandated standards required in use of force policies. Topics like choke holds and officer accountability were in Kittery’s policy prior to Floyd’s death, he said.
“The point I want to make is these have been in place, these weren’t knee-jerk reactions,” Richter said. “These were proactive to try to prevent some of these problems.”
In Maine, the attorney general’s office has exclusive jurisdiction over criminal investigations into law enforcement when deadly force is involved.
Like several departments, Kittery prohibits neck restraints unless appropriate in a deadly force struggle as a means of defense or escape.
Kittery’s policy also outlines “weapon of availability,” which refers to objects that typically wouldn’t be used or authorized as weapons, but may be used in “extraordinary circumstances” when no other defensive tool is available.
“We serve the people of the community, everybody in my department understands that,” Richter said.
Rollinsford and Greenland each sport detailed policies.
Rollinsford’s definition of a neck hold includes carotid restraint holds, lateral vascular neck constraint and “a hold with a knee or other item to a subject’s neck,” labeling each as an example of deadly force.
Strafford County Sheriff’s Office policies contain similar language. In addition to providing assistance to local police departments, the office’s duties include the local populations and federal immigration detainees held at the Strafford County House of Corrections.
Greenland’s policy explicitly states “due to the propensity to cause death or serious injury,” the use of any type of choke holds or forearm holds, including the carotid neck restraint, is considered the use of deadly force, and therefore prohibited unless justified as a last resort.
Greenland’s policy also clearly outlines de-escalation as a “primary objective,” and that the use of physical force “must be discontinued when resistance ceases or when the incident is under control.”
“De-escalation techniques include the use of communication, time, distance, barriers, and continual situational assessment,” the policy states. “Officers should conduct a threat assessment to avoid placing themselves or others in undue jeopardy. Officers will look for opportunities to slow encounters down in order to gain voluntary compliance or call for additional resources.”
Greenland Police Chief Tara Laurent noted her most recent revision to the policy is a mandatory “duty to intervene,” and explicitly states the mandate also applies to assistance at scenes out of town limits, when a Greenland officer may observe a law enforcement officer from another agency using force that is “clearly beyond that which is objectively reasonable under the circumstances.”
Newmarket Police Chief Kyle True said after review of his policy following SMG’s request, he also added verbiage outlining a duty to intervene.
“If an officer observes or witnesses excessive, unjustified or unreasonable force, the officer shall immediately intervene to stop the excessive, unjustified or unreasonable use of force and shall also report such force to their immediate supervisor as soon as practicable,” Newmarket’s policy now states. The policy already prohibited neck restraints and choke holds unless deadly force is authorized.
Some departments, like Rochester, Newington Seabrook, Epping and Kensington, reference “positional asphyxia” in their policies, rather than explicitly choke holds and neck restraints.
“Positional asphyxia occurs when the position of the body interferes with respiration, and may result in the cessation of breathing and eventual unconsciousness,” Seabrook’s policy reads. “This condition is especially prevalent when the subject is lying on their stomach. The reaction can be heightened when exposed to (pepper spray). Overweight persons or persons with breathing ailments can have an aggravated reaction and warrant vigilant observation… If breathing difficulties are observed, re-position the prisoner and if the condition persists, have the prisoner transported to the hospital if necessary.”
Rochester’s policies contain similar language while also connecting positional asphyxia with things like drugs.
“Prisoners who are under the influence of alcohol or drugs, who are excited or becoming violent should not be placed on their stomach while handcuffed,” Rochester’s policy reads. “This causes the respiratory system to be reduced and can result in positional asphyxia. Care should be taken when transporting a prisoner who may be under the influence of alcohol or drugs, due to positional asphyxia.”
Newington references positional asphyxia more than any other department, including one 13-page document in which it is listed and fully defined more than half a dozen times.
The Kensington Police Department explicitly states except for the length of time absolutely necessary to assure the safety of the arresting officer or others, “a prisoner shall not be placed in such a constricted position.”
Departments without policies on neck holds or positional asphyxia
Five departments submitted policies that contain no direct references to neck, choke or strangle holds, nor positional asphyxia. Those departments are East Kingston, New Castle and Newfields in New Hampshire, and Eliot and York in Maine.
Several police chiefs said prohibition of choke holds or neck restraints has always been inferred – as they are not taught – but were not necessarily reflected in policy.
The Eliot Police Department’s “Situational Use of Force Policy” does state “incapacitating force methods” are permitted when a subject presents a threat to life or seriously bodily injury, and unspecified “compliance techniques” in “other lesser scenarios.”
“The dynamics of all encounters are different, and it would be impossible to attempt to categorize and define all the levels of control appropriate in any given situation,” Eliot’s policy reads. “The degree of control employed, however, should be in direct relationship to the amount of resistance employed against the officer or the level of threat that a person poses to the officer or others. The use of control may be in the form of advice, warnings, persuasion, verbal commands, passive control, the use of OC spray, physical contact, the use of non-lethal weapons, or the use of deadly force.”
New Castle’s policies state officers will use “only reasonable force which is necessary to accomplish lawful objectives” and define deadly force as “force that creates a substantial likelihood of causing serious bodily harm or death.”
Rochester and East Kingston are the only departments that specifically reference race in their policies that govern force.
“No distinction shall be made relative to the age, sex or race when defending against deadly force,” Rochester’s policy reads. “Self-defense and imminent threat to life shall be the only policy guideline utilized for employing deadly force.”
Most of the departments outline formal review processes that involve its chief and other high-ranking officers for non-lethal force incidents, and state-run processes for incidents in which a person dies.
Many require a high-ranking officer, often a captain, to annually review all incidents involving force and provide an analysis to the chief.
Some, like Dover, also have warning mechanisms that track and investigate individual officer behavior patterns, including things like use of force and traffic stop demographics, as well as high sick day usage, Breault said.
Police departments in East Kingston, Durham and Newington have policies that contain identical verbiage outlining an incident review process that includes a chief-appointed board of an officer’s peers.
“If the incident resulted in death or serious bodily injury, the chief of police shall appoint an administrative review board consisting of officers of equal or superior rank who shall be responsible for reviewing the circumstances surrounding the incident,” the policy states. “When reviewing the incident, only the review board may consider the facts and circumstances known to the officer at the time of the shooting or the use of force.”
East Kingston Police Chief Michael LePage explained the above section is “another layer internally” within an overall investigation into a use of force incident. The New Hampshire State Police and Attorney General’s Office would determine how much weight, “if any,” is given to the findings of the administrative review board, LePage said.
Portsmouth and Rochester are the local communities in which there is an elected police commission overseeing the departments.
Next week, Merner said he expects to present his department’s updated use of force and bias data to the Portsmouth Police Commission. Data presented last year showed 135 recorded “response to resistance” incidents and zero complaints alleging bias by police in 2018.
In Dover, Breault said he hopes the national dialogue surrounding race and excessive force will help lead to more consistency and accountability, nationally and locally.
Breault said both would help address the misconduct seen across the country. Even in departments without proven instances of misconduct, Breault said he believes “there’s room for improvement.”
“I don’t know why a chief would not hope that,” he said. “I do hope that, as a profession, we figure out ways to be more alike and are holding everyone accountable for the same things and have an understanding of specific use of force policies and other issues. We should be on the same page.”
The following departments provided copies of their use of force policies when requested by Seacoast Media Group: Barrington, Dover, Durham, East Kingston, Eliot, Epping, Exeter, Greenland, Hampton, Kensington, Kittery, New Castle, Newfields, Newington, Newmarket, North Hampton, Nottingham, Rochester, Portsmouth, Rockingham County Sheriff’s Office, Strafford County Sheriff’s Office, Seabrook, Somersworth, Rollinsford, Rye, Stratham, University of New Hampshire and York.
Requests remain pending for departments in Brentwood, Farmington, Lee, Madbury and Milton, and Berwick, North Berwick and South Berwick in Maine. A late request was submitted to Hampton Falls.
While it didn’t provide a copy of its policy before deadline, Madbury did tell SMG choke holds aren’t allowed.
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Posted on June 20, 2020 at 11:34 am