American Civil Liberties Union of Nevada. Proposed Revisions to the Las Vegas Metropolitan Police Department s Use of Force Policy

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1 AMERICAN CIVIL LIBERTIES UNION OF NEVADA 601 S. RANCHO DRIVE SUITE B11 LAS VEGAS, NV P/ F/ AIRMOTIVE WAY SUITE 202 RENO, NV P/ F/ American Civil Liberties Union of Nevada Proposed Revisions to the Las Vegas Metropolitan Police Department s Use of Force Policy Franz Español Legal Intern Dane Claussen Executive Director Allen Lichtenstein General Counsel March 26,

2 I. INTRODUCTION On January 13, 2012, the American Civil Liberties Union of Nevada ( ACLU ) submitted a petition to the U.S. Department of Justice ( DOJ ) requesting for a patterns and practices investigation of the Las Vegas Metropolitan Police Department ( LVMPD ). Consistent with the ACLU s petition, the ACLU reviewed the LVMPD s Use of Force Policy ( LVMPD Policy or Policy ) with the goal of improving the Policy and preventing the unreasonable use of force by LVMPD officers. The ACLU reviewed use of force policies from various police departments and law enforcement agencies in Los Angeles, Denver, Louisville, Portland (Oregon), Philadelphia, and Washington DC in order to recommend substantive revisions to the LVMPD Policy. The ACLU also reviewed policy recommendations from the International Association of Chiefs of Police and the Police Assessment Resource Center a non-profit organization that works with monitors, law enforcement executives, civic and government officials, community groups, and other interested constituencies, [to] strengthen police oversight. 1 After careful review of the LVMPD Policy and the other policies from around the nation, the ACLU concluded the following: In contrast to many police departments and law enforcement agencies around the nation, the LVMPD Policy fails to emphasize the importance of human life above the use of force. The LVMPD Policy does not provide officers with specific and adequate directives on the proper use of force. 1 See 2

3 LVMPD s failure to provide its officers with adequate directives may lead officers to use force inappropriately and excessively. Pursuant to these conclusions, the ACLU has summarized its findings and recommendations to improve the LVMPD Policy and ensure that LVMPD comports with national standards regarding the prevention, evaluation, and management of excessive use of force. This is the first of a series of memoranda that the ACLU will submit to LVMPD. The scope of this memorandum is limited to the LVMPD Policy. This memorandum will not discuss, inter alia, the ACLU s recommendations to LVMPD s training or reporting procedures. The ACLU will submit subsequent memoranda detailing the flaws of, inter alia, the LVMPD s Post Use of Force Procedures LVMPD s procedures regarding the reporting and investigation of use of force incidents and the LVMPD use of force training procedures. Furthermore, LVMPD has expressed that the Policy is currently being revised, and the ACLU is aware that the revision process is ongoing. However, the ACLU s recommendations should be helpful in the revision process. The ACLU is committed to providing LVMPD with any resources it may need to revise the Policy. II. RECOMMENDATIONS TO THE LAS VEGAS METROPOLITAN POLICE DEPARTMENT S USE OF FORCE POLICY A. Preamble or Mission Statement Generally, a police department s use of force policy should begin with a preamble or general [mission] statement setting forth the police department's basic 3

4 doctrine on use of force. 2 The purpose of a preamble or mission statement is to communicate both to the community and to police officers that the preservation of human life is at all times a central tenet of the police agency. 3 A vast majority of police departments including the Los Angeles Police Department, Philadelphia Police Department, and Louisville Metro Police Department have a preamble or mission statement in its respective use of force policies. 4 The LVMPD currently has an introduction section within the Policy that explains the Policy s purpose and the law on the use of force. 5 However, the Policy does not have a preamble or mission statement that appropriately requires LVMPD officers to value the protection of human life above the use of force. Specifically, the Policy states: I. Policy The purpose of this Order is to explain the law and this agency s policy on the use of force. This explanation will give members the information necessary to perform their duties confidently and wisely, without subjecting themselves to criminal or civil liability or to negative administrative repercussions. To avoid repetition, and to aid in understanding the LVMPD s universal policy, procedures regarding force are grouped in subsequent sections of this Order. Specific policies regarding certain weapons, tactics, or practices are addressed in relevant sections. 6 2 Memorandum from Shanetta Y. Cutlar, Chief Special Litigation Section, United States Department of Justice, to the Honorable Roosevelt F. Dorn, Mayor, City of Inglewood, California (December 28, 2009) available at 09.pdf. 3 The Portland Police Bureau: Officer- Involved Shootings and In- Custody Deaths, Police Assessment Resource Center, August 2003, at Id. at Las Vegas Metropolitan Police Department, Department Manual, 6/ Use of Force (current as of March 8, 2012). 6 Id. 4

5 The Policy s introduction also fails to instruct LVMPD officers that the use of deadly force is an extreme measure to be employed only in the most limited and extraordinary of circumstances. In contrast to the LVMPD Policy, the Los Angeles Police Department ( LAPD ) sets forth the following preamble in its use of force policy: PREAMBLE TO USE OF FORCE. The use of force by members of law enforcement is a matter of critical concern both to the public and the law enforcement community. It is recognized that some individuals will not comply with the law or submit to control unless compelled to do so by the use of force; therefore, law enforcement officers are sometimes called upon to use force in the performance of their duties. It is also recognized that members of law enforcement derive their authority from the public and therefore must be ever mindful that they are not only the guardians, but also the servants of the public. The Department's guiding value when using force shall be reverence for human life. When warranted, Department personnel may objectively use reasonable force to carry out their duties. Officers who use unreasonable force degrade the confidence of the community we serve, expose the Department and fellow officers to legal and physical hazards, and violate the rights of individuals upon whom unreasonable force is used... 7 Similarly, the opening paragraph of the Louisville Metro Police Department s ( Louisville Metro ) use of force policy states: It is the intent of the Louisville Metro Police Department that all members recognize the importance of human life, 7 Los Angeles Police Department, Department Manual, Policy on the Use of Force available at 5

6 respect basic human rights and have an intolerant attitude towards the abusive treatment of all persons. Bearing this in mind, officers use of force shall be value driven, utilizing only the force reasonable under the circumstances so as to minimize the chance of injury to themselves and others. 8 Louisville Metro and LAPD both explicitly communicate its mission to serve as guardians of the public and to preserve human life above the use of force. Furthermore, the LAPD s preamble also explains the consequences of an officer s violation of the department s use of force policy. In contrast, LVMPD s introduction section does not direct officers to value the preservation of human life over the use of force. LVMPD also fails to provide officers with a succinct description of the consequences of an officer s violation of the Policy. Thus, the ACLU recommends that LVMPD replace its introduction section with a Mission Statement section. The Mission Statement should succinctly include the following: (1) LVMPD s basic doctrine on the use of force; (2) a directive requiring officers to value the sanctity of human life over the use of force; and (3) the consequences of an officer s violation of the Policy including individual consequences (i.e. officer discipline, termination, and/or prosecution) and community ramifications (i.e. unreasonable use of force degrades the confidence of the community). B. Definitions of Critical Terms LVMPD must define critical terms in the Policy to ensure that the Policy s directives are clear and consistent. During its review of the Policy, the ACLU concluded 8 Louisville Metro Police Department, Standard Operating Procedure (February 2008). 6

7 that the Policy uses vague definitions of critical terms. The use of vague definitions may lead to misunderstandings and confusion regarding the parameters of an officer s use of force. 9 Furthermore, vague definitions result in inconsistent application of a police department s use of force policy and pervasive underreporting of use of force incidents. 10 Specifically, the ACLU recommends that the LVMPD revise its explanation and definition of: (1) Reasonable Force and Objective Reasonableness ; and (2) Deadly Force. 1. Reasonable Force and Objectively Reasonable The LVMPD uses the term reasonable force to determine whether an officer s actions are objectively reasonable in light of the totality of the circumstances. 11 This section will provide recommendations to improve the Policy s definition and explanation of reasonable force and the objectively reasonable standard. In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court held that [t]he reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. 12 The propriety of an officer s use of force is judged under an objective [standard]: the question is whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or 9 Memorandum from Jonathan M. Smith, Chief Special Litigation Section, United States Department of Justice, to the Honorable Michael McGinn, Mayor, City of Seattle, Washington at 15 (Dec. 16, 2011) (on file with the ACLU). 10 Id. at Las Vegas Metropolitan Police Department, Department Manual, 6/ Use of Force, II. Definitions (current as of March 8, 2012) U.S. 386, 396 (1989). 7

8 motivation. 13 Police departments generally cite directly to Graham in defining the terms reasonable force and/or objectively reasonable. 14 The Policy s Definitions section defines Reasonable Force to mean: The degree of force that is appropriate for gaining compliance. In accordance with Graham v. Connor, 490 U.S. 386 (1989), the degree of force used in effecting an arrest, investigatory stop or other seizure is evaluated by using a reasonable police member standard: Whether the member s actions were objectively reasonable in light of the surrounding facts and circumstances, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the member or others, and whether the suspect is actively restraining arrest or attempting to evade arrest by flight. 15 Although the Policy correctly cites Graham, the first sentence defining reasonable force as a the degree of force that is appropriate for gaining compliance is problematic because it is unclear and overly broad. As it is currently formulated, an officer may interpret reasonable force as the force an officer needs to employ to gain another person s compliance (i.e. the officer must apply force to gain a person s compliance). The proper definition of reasonable force must focus on an officer s objectively reasonable response to a situation based on the totality of the all the facts surrounding the officer s interaction. 13 Id. at See, e.g., Los Angeles Police Department, Department Manual, Policy on the Use of Force available at ( The Department examines [objective] reasonableness using Graham and from the articulated facts from the perspective of a Los Angeles Police Officer with similar training and experience placed in generally the same set of circumstances. ). 15 Las Vegas Metropolitan Police Department, Department Manual, 6/ Use of Force (current as of March 8, 2012). 8

9 The LVMPD must eliminate the first sentence to avoid confusion. Furthermore, the LVMPD must direct its officers that in some circumstances the amount of reasonable force needed to gain compliance may be to limited to verbal communication or persuasion without the use of actual physical force. The DOJ, in a recent patterns and practices investigation of the Inglewood Police Department ( Inglewood PD ), stated that an unclear or overly general policy may result in unreasonable or unnecessary use of force by an officer. 16 Therefore, the ACLU recommends that the LVMPD eliminate the first sentence of the Policy s definition of reasonable force to avoid unnecessary or unreasonable confusion by officers. Instead, the Policy s definition of reasonable force should be revised to track the language of Graham more closely: The level of force that is necessary in a particular situation. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make splitsecond judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation. The reasonableness inquiry in an excessive force case is an objective one: the question is whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation Memorandum from Shanetta Y. Cutlar, Chief Special Litigation Section, United States Department of Justice, to the Honorable Roosevelt F. Dorn, Mayor, City of Inglewood, California, at 5 (December 28, 2009) available at 09.pdf U.S. at

10 Members may either escalate or de-escalate the use of reasonable force as the situation progresses or circumstances change. Officers should recognize that their conduct immediately connected to the use of force may be a factor which can influence the level of force necessary in a given situation. When reasonable under the totality of circumstances, officers should use advisements, warnings, verbal persuasion, and other tactics and recognize that an officer may withdraw to a position that is tactically more secure or allows an officer greater distance in order to consider or deploy a greater variety of force options. 18 The Policy s Statement of Authority is another area that needs substantive change because of its explanation of reasonable force. 19 Specifically, the Policy s Statement of Authority section expands the Policy s explanation of reasonable force by stating the following: When assessing the need to use force, and the type and degree of force to use, members should consider the nature and extent of any threat posed by the subject, as well as all other circumstances of the encounter. In accordance with Graham v. Connor, 490 U.S. 386 (1989), situational factors include but are not limited to the following: a. The severity of the crime(s) at issue; b. Whether the subject poses an immediate threat to the safety of the officer(s) or others; c. Whether the subject is actively resisting arrest of attempting to evade arrest by flight Derived in part from Denver Police Department Use of Force Policy (1)(a) (2010). 19 Las Vegas Metropolitan Police Department, Department Manual, 6/ Use of Force (current as of March 8, 2012). 20 Id. 10

11 The issue with the Policy s current Statement of Authority is its failure to provide officers with specific non-exhaustive factors when faced with a use of force situation. A police department s failure to provide specific policy guidance on the appropriate use of force may lead officers to believe that they are justified in using force in situations in which it would be unreasonable or unnecessary. 21 Consistent with the notion of greater policy guidance, other police departments have taken steps to expand their explanations of reasonable force by providing officers with specific factors to consider when contemplating the use of force. The LAPD, for example, provides its officers with an extensive non-exhaustive list of factors to consider when faced with a potential use of force situation 22 : Factors Used To Determine Reasonableness. The Department examines reasonableness using Graham and from the articulated facts from the perspective of a Los Angeles Police Officer with similar training and experience placed in generally the same set of circumstances. In determining the appropriate level of force, officers shall evaluate each situation in light of facts and circumstances of each particular case. Those factors may include but are not limited to: The seriousness of the crime or suspected offense; The level of threat or resistance presented by the subject; Whether the subject was posing an immediate threat to officers or a danger to the community; The potential for injury to citizens, officers or subjects; 21 Memorandum from Shanetta Y. Cutlar, Chief Special Litigation Section, United States Department of Justice, to the Honorable Roosevelt F. Dorn, Mayor, City of Inglewood, California, at 5 (December 28, 2009) available at 09.pdf. 22 The Portland Police Bureau implements a similar list of factors. See Portland Police Bureau, Manual of Policy and Procedure, Policy No (2010). 11

12 The risk or apparent attempt by the subject to escape; The conduct of the subject being confronted (as reasonably perceived by the officer at the time); The time available to an officer to make a decision; The availability of other resources; The training and experience of the officer; The proximity or access of weapons to the subject; Officer versus subject factors such as age, size, relative strength, skill level, injury/exhaustion and number officers versus subjects; and, The environmental factors and/or other exigent circumstances. 23 Moreover, many police departments go further and explicitly phrase their explanations of reasonable force in a restrictive context. For example, the Denver Police Department ( Denver PD ) instructs its officers that: Each situation is unique. Sound judgment and the circumstances of each situation will dictate the force option the officer deems necessary. Depending on the circumstances, officers may find it necessary to escalate or de-escalate the use of force The Portland Police Bureau ( Portland PB ) employs the following directive: It is the policy of the Bureau that members use only the force reasonably necessary under the totality of circumstances to perform their duties and resolve confrontations effectively and safely. The Bureau expects members to develop and display, over the course of their practice of law enforcement, the skills and abilities that allow them to regularly resolve 23 Los Angeles Police Department, Department Manual, Policy on the Use of Force available at 24 Denver Police Department Use of Force Policy (4)(C) (2010). 12

13 confrontations without resorting to the higher levels of allowable force. 25 specifically: The DOJ also adheres to a restrictive definition of reasonable force, [F]orce should be used only when it is a necessity. [A police department] should revise its policy on the use of force to permit force only when the force used is objectively reasonable because it is necessary to overcome resistance offered in a lawful police action to compel an unwilling subject's compliance with an officer's lawful exercise of police authority. 26 LVMPD needs to provide its officers with greater direction and clarity in assessing circumstances where an officer may need to use force. In accordance with national police standards, the ACLU recommends that the LVMPD provide its officers with a restrictive definition of reasonable force. The Policy s definition and explanation of reasonable force must be thorough and include specific nonexhaustive factors that an officer should consider when faced with a use of force situation. The ACLU recommends that the LVMPD include the following directive in the Policy s Statement of Authority section: Force should be used only when it is a necessity. The community expects and the Las Vegas Metropolitan Police Department requires that members use only reasonable force the level of force objectively reasonable to perform their duties. The level of force 25 Portland Police Bureau, Manual of Policy and Procedure, Policy No (2010). 26 Memorandum from Shanetta Y. Cutlar, Chief Special Litigation Section, United States Department of Justice, to the Honorable Roosevelt F. Dorn, Mayor, City of Inglewood, California, at 8 (December 28, 2009) available at 09.pdf. 13

14 applied must reflect the totality of circumstances surrounding the immediate situation, including but not limited to the following factors: The seriousness of the crime or suspected offense; The level of threat or resistance presented by the subject; Whether the subject was posing an immediate threat to officers or a danger to the community; The potential for injury to citizens, officers or subjects; The risk or apparent attempt by the subject to escape; The conduct of the subject being confronted (as reasonably perceived by the officer at the time); The time available to an officer to make a decision; The availability of other resources to deescalate the situation; The training and experience of the officer; The proximity or access of weapons to the subject; Officer versus subject factors such as age, size, relative strength, skill level, injury/exhaustion and number officers versus subjects; and, The environmental factors and/or other exigent circumstances. The officer need only select a level of force that is necessary and within the range of "objectively reasonable" options. Officers must rely on training, experience and assessment of the situation to decide an appropriate level of force to be applied. Reasonable and sound judgment will dictate the force option to be employed. Therefore, the Department examines all uses of force from an objective standard rather than a subjective standard Derived in part from Merrick Bobb, Bernard K. Melekian, Oren Root, Matthew Barge, Camelia Naguib, The Denver Report on Use of Deadly Force, Police Assessment Resource Center (June 2008); Los Angeles Police Department, Department Manual, Policy on the Use of Force available at 14

15 2. Deadly Force LVMPD s current definition of Deadly Force is: Any force which in the manner used creates a substantial risk of serious bodily injury or death. The elements that must be present for use of deadly force are: Ability, Opportunity, Imminent Jeopardy, and Preclusion. Ability The subject has the ability to either kill or seriously injure the officer(s) or a third party. Opportunity the subject has the opportunity to either kill or seriously injure the officer(s) or a third party. Imminent Jeopardy The officer(s) is in fear of either his own life or the life of a third party and must act immediately or face either death or serious bodily injury. Preclusion All other options have been reasonably exhausted prior to the use of deadly force. Deadly force must be reasonable in response to the subject s actions. 28 The Policy rightfully implements a broad definition of deadly force. However, the ACLU believes that the LVMPD s definition of Imminent Jeopardy is incorrect. Specifically, the correct standard for determining the appropriate level of force is whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. 29 The LVMPD s definition of Imminent Jeopardy is based on a subjective standard: whether an officer is in fear of either his own life or the life of a third party 28 Las Vegas Metropolitan Police Department, Department Manual, 6/ Use of Force (current as of March 8, 2012). 29 Graham, 490 U.S. at

16 and must act immediately. 30 Therefore, the ACLU recommends that the LVMPD use the proper objective reasonableness standard in its definition of Deadly Force. Specifically, the LVMPD should adopt the following explanation of Imminent Jeopardy : Imminent Jeopardy: Based on all facts and circumstances confronting the officer and without regard to officer s underlying intent or motivation, the officer reasonably believes that the subject poses an immediate threat to the life of the officer(s) or other third parties and the officer must act immediately to prevent death or serious bodily injury. Another issue with the LVMPD s definition of Deadly Force is that it fails to instruct officers that other less lethal force tools may rise to the level of deadly force if used inappropriately. LVMPD should expand its definition of Deadly Force and instruct officers that certain uses of force other than the use of a firearm may constitute deadly force. Specifically, LVMPD should instruct officers that the use of less lethal force, such as but not limited to the use of impact weapons (i.e. baton strikes to the head or other vital areas), carotid holds, low lethality shotguns, or use of electronic control devices, may rise to the level of deadly force if used inappropriately. The ACLU recommends that the following sentences be added to LVMPD s current definition of Deadly Force : Deadly force is that degree of force, the intended, natural, and expected consequence of which, or the misapplication of which, is likely to produce death or 30 Las Vegas Metropolitan Police Department, Department Manual, 6/ Use of Force (current as of March 8, 2012). 16

17 serious bodily injury. 31 Deadly force is not limited to the use of firearms. Other forms of force that may rise to the level of deadly force include but are not limited to: strikes to the head or other vital areas with impact weapons, carotid holds, low lethality shotguns or impact munitions, or the use of electronic control devices. C. Response to Resistance and De-escalation Police departments often provide specific guidelines and directives regarding an officer s objectively reasonable response to resistance. 32 In determining an officer s objectively reasonable response to a resisting person, the officer must have a sufficiently strong governmental interest to justify a given use of force based on the totality of the circumstances, and the officer must consider the severity of the crime at issue. 33 An officer who encounters a resisting person may have a sufficient governmental interest to exercise objectively reasonable force (i.e. circumstances where the resisting person poses a significant threat to themselves and others). 34 However, if a person stops resisting an officer must de-escalate and limit their use of force accordingly. 35 Police departments often require officers to modify their response to a resisting person based on the person s level of resistance. 36 Some police departments go further, and explicitly require officers to de-escalate the situation if the person stops resisting Derived in part from Washington DC Metropolitan Police Department General Order at 2 (2002). 32 See, e.g., Denver Police Department Use of Force Policy (1)(a) (2010). 33 Young v. County of Los Angeles, 655 F.3d 1156, 1164 (9th Cir. 2011); Liberal v. Estrada, 632 F.3d 1064, 1079 (9th Cir. 2011). 34 Young, 655 F.3d at Id. 36 See, e.g., Denver Police Department Use of Force Policy (1)(a) (2010). 37 See, e.g., Washington DC Metropolitan Police Department General Order , at 6 (2002). 17

18 For example, the Washington DC Metropolitan Police Department s ( DC Metro ) use of force policy provides the following: Members shall modify their level of force in relation to the amount of resistance offered by a subject. As the subject offers less resistance the member shall lower the amount or type of force used. Conversely, if resistance escalates, members are authorized to respond in an objectively reasonable manner. 38 The Portland PB s use of force policy emphasizes the need for de-escalation, specifically: [t]he Bureau is dedicated to providing the training, resources and management that help members safely and effectively resolve confrontations through the application of de-escalation tools and lower levels of force. 39 In addition to de-escalation, many police departments provide specific use of force guidelines for circumstances where an officer encounters a person suffering from: a physical or mental condition, drugs or alcohol, or a language barrier. Persons with a physical or mental condition, under the influence of drugs or alcohol, or suffering from a language barrier are especially vulnerable to excessive force because these persons appear resistant to an officer s commands. 40 For example, the Denver PD s use of force policy provides its officers with the following directive pertaining to persons suffering from a medical condition, mental impairment, developmental disability, physical limitation, language, drug interaction, or emotional crisis : 38 Id. 39 Portland Police Bureau, Manual of Policy and Procedure, Policy No (2010). 40 See, e.g., Mike Blasky, Video shows officers beating motorist in diabetic shock, Las Vegas Review Journal, Feb. 7, 2012, available at shows- officers- beating- motorist- in- diabetic- shock html. 18

19 It is important for officers to bear in mind that there are many reasons a suspect may be resisting arrest or may be unresponsive. The person in question may not be capable of understanding the gravity of the situation. The person's reasoning ability may be dramatically affected by a number of factors, including but not limited to a medical condition, mental impairment, developmental disability, physical limitation, language, drug interaction, or emotional crisis. Therefore, it is possible that a person's mental state may prevent a proper understanding of an officer's commands or actions. In such circumstances, the person's lack of compliance may not be a deliberate attempt to resist the officer. An officer's awareness of these possibilities, when time and circumstances reasonably permit, should then be balanced against the facts of the incident facing the officer when deciding which tactical options are the most appropriate to bring the situation to a safe resolution. Policing requires that at times an officer must exercise control of a violent, assaultive, or resisting individual to make an arrest, or to protect the officer, other officers, or members of the general public from risk of imminent harm. Officers may either escalate or de-escalate the use of force as the situation progresses or circumstances change. Officers should recognize that their conduct immediately connected to the use of force may be a factor which can influence the level of force necessary in a given situation. When reasonable under the totality of circumstances, officers should use advisements, warnings, verbal persuasion, and other tactics and recognize that an officer may withdraw to a position that is tactically more secure or allows an officer greater distance in order to consider or deploy a greater variety of force options. When a suspect is under control, either through the application of physical restraint or the suspect's compliance, the degree of force should be deescalated accordingly Denver Police Department Use of Force Policy (1)(a) (2010). 19

20 In a recent DOJ investigation of the Inglewood PD, the DOJ stressed the importance of policies that guide officers in circumstances where a person may appear resistant based on a physical or mental condition or drug or alcohol impairment: [The Inglewood PD s use of force policy] lacks sufficient guidance or illustration for officers who are confronted with suspects that are mentally ill or under the influence of drugs or alcohol. Thus, IPD's current use of force policy potentially could allow for broad inconsistencies in the use of force by officers in similar circumstances. A clearly articulated use of force policy and matrix would bring clarity and confidence to officers. 42 Although the LVMPD includes a definition of resistance within the Policy 43, the Policy does not have specific directives on the proper officer response to resisting persons or persons who may be perceived as resisting because of a physical or mental condition. The ACLU recommends that the LVMPD include specific directives that require officers to: (1) modify their use of force based on a person s level of resistance ; and (2) de-escalate the situation once the threat of resistance has dissipated. Furthermore, the LVMPD should include specific policies for officers who are confronted with persons who appear to be resisting arrest because of a physical or mental condition, drug or alcohol impairment, or a language barrier. 42 Memorandum from Shanetta Y. Cutlar, Chief Special Litigation Section, United States Department of Justice, to the Honorable Roosevelt F. Dorn, Mayor, City of Inglewood, California at 10 (December 28, 2009) available at 09.pdf. 43 See Las Vegas Metropolitan Police Department, Department Manual, 6/ Use of Force (current as of March 8, 2012) (Physical Resistance is defined as [t]he resistance offered by a person in the form of active physical aggression towards a member or another person and can include the threat of or actual use of a weapon by a person against a member or third party. ). 20