RESPONSE TO SALT LAKE CITY MAYOR'S EXECUTIVE ORDER 5 ON POLICE REFORM

Salt Lake City Hall, by Robin Pendergrast

Official Press Release - August 7, 2020

The socio-political climate throughout the country has been in upheaval since the death of George Floyd on May 25, 2020. We have seen protests across every state and throughout the entire world on his behalf.

On June 9, 2020, Salt Lake City, Utah took a major step, formalizing a policy that prohibited the use of chokeholds by the Salt Lake City Police Department. Mayor Mendenhall and the City Council took another big step on August 3, 2020—implementing new policies protecting civilians and police officers alike.

These are significant changes that will see the state of Utah taking massive strides forward in regard to how we handle police brutality and officers wrongly accused. The Black Fist Coalition would like to address Executive Order 5, pointing out the things done successfully, as well as specific suggestions we have for improvement.

Our Concerns, Summarized

Who defines what qualifies as the necessary use of force? What is considered to be a reasonable use of force? Who will dictate what qualifies as unreasonable in the use of de-escalation tactics? We would like the use of real-world examples to illustrate these, making it clear, for the public and officers alike, as to what to avoid.

How will the outlined policies be enforced? What will happen if an officer does not comply? Will officers who refuse to comply in one city be allowed to work in another city?

This Executive Order did not address No-Knock Warrant policies that many police departments have in place. We have many concerns about the safety of civilians and the risks officers may face upon entering a home without knocking. Due to the Second Amendment and Utah’s Castle Doctrine, the possibility of officers getting mistaken as dangerous intruders is high, and the likelihood of officers getting shot at by civilians exercising their right to self-defense increases. Mayor Mendenhall has previously addressed working to overhaul no-knock warrants, and to put stricter rules in places. Where does our state now stand on this issue?

We would also like to address qualified immunity for police officers. Officers hold a significant amount of power and responsibility. They hold the lives of our citizens in their hands. This is not a duty that should be taken lightly. Allowing officers qualified immunity puts communities at risk and allows more reckless behavior from officers, putting other members of the force at risk as well as our people. We need to end qualified immunity now so that there is legal precedent to prosecute officers who engage in criminal use of force and corruption.

There is a great need for a Civilian Review Board to be created. Checks and balances of power elevate our country away from tyranny. With a neutral, elected, diverse board in place to balance the power of the police departments, our communities can only benefit. The police are currently a self-regulatory organization. Removing this pressure would also be beneficial for the force, by lessening the pressure put upon police supervisors, lessening the possibility of corruption, and ensuring safety for everyone.

Another request we would like to put forth is reallocating some police funding. Evidence shows that if we better fund at-risk communities, especially in regard to education, housing, mental health resources, and accessibility, we would see crime rates noticeably drop. This would not only be beneficial to poorer populations but would also help to keep our officers safe.
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Overall, we are proud to see such a document created in our state. We look forward to seeing its policies put into action. We are pleased that our state stands for justice and freedom, and we are excited to continue creating positive change alongside our elected officials.

Specific Commentary

Section 1. Use of Force (Policy 300)
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Supreme Court Case Graham v. Connor (1989) is referenced in the initial order.  This case rejects the notion that all excessive force claims are able to be governed by a single generic standard. This language leaves it to the discretion of officers what can be considered “objectively reasonable” force.

We implore that the parameters surrounding when force may be deemed necessary be defined and held to a strict standard, with few circumstantial exceptions. The use of loose language is cause for concern, as it is due to officer discretion that excessive force is used so often.

Also stated is that officers must always use de-escalation tactics before using force. What de-escalations tactics and techniques are officers going to be taught? What sort of training regimens will they be subject to? Will this training be consistently relearned and updated? We ask out of concern for the well-being of officers and citizens alike. Training in de-escalation techniques is a matter applying to public safety, but to officer safety as well, ensuring that officers not be subjected to unjust treatment; socially, physically, or lawfully.

The closing statement; “Officers will have an affirmative, individual duty to ensure their own compliance with this policy as well as the conduct of other officers.” Asks the question, what happens if officers refuse to comply with this measure? How will these regulations be enforced?
 
300.2.1 Duty to Intercede

We are glad to see an affirmation of an established policy to intercede. We also appreciate the shift from expectation to intercede with observation to reasonable belief that inappropriate force may be used. 
We would also like to know who defines what is considered if force is “excessive” or “unnecessary”. This is obviously very subjective and will vary from case to case, but is this something that fellow officers will decide? We are concerned that this runs the risk of officers allowing things to slide and allowing rules to be bent. A solution to this issue would be to create an elected, diverse Civilian Review Board to go through the actions of officers and decide, case by case, if force was necessary, or if disciplinary actions need to be taken.  

This is an important measure to take for public and officer safety. Ensuring that there are solid rules, parameters, limitations, etc. applied to these measures helps protect civilians against possible police corruption and brutality.

We request that, alongside this measure, safety nets be put into place to protect officers who speak up against their more corrupt partners. There are cases in which speaking up against the corruption in their departments ended with cops getting fired. While there are many, two examples of this are Cariol Horne (Buffalo, New York) and Regina Tasca (Bogota, New Jersey). In 2006, Horne stopped an officer’s chokehold on a suspect in handcuffs. The department pressed disciplinary charges against her for this, before finally firing her in 2008. 

Tasca responded to a mental health crisis in 2011--another officer came to the scene as well and began to punch the victim. Tasca intervened, following the rules dictated by the department, “the responsibility of law enforcement to take steps possible to prevent or stop the illegal or inappropriate use of force by other officers”. Tasca was suspended, then subjected to disciplinary reviews and psychological evaluations. She was fired in 2012. 

Following just rules and doing what is morally right should never result in punishment, especially in cases like these. We want those who are there to uphold the law and keep our communities safe to be protected from such corrupt retaliation.
 
300.3.1 Use of Force to Effect an Arrest

Requiring that de-escalation tactics become mandatory is something that we are excited to see. Something that caused concern, however, was the phrase, “unless unreasonable.” We are concerned about the open-ended possibilities of what can be defined as reasonable or unreasonable. This vague language could allow corrupt officers to use loopholes to get away with injuring or killing suspects. We also want precise, situational examples of the different uses of de-escalation, and at what point it is considered “unreasonable” to continue trying to de-escalate a situation.
 
300.5 Deadly Force Applications

We are glad to see this shift in policy. We recognize that had this been implemented sooner, it could have saved the life of Bernardo Palacios-Carbajal, which saddens us. These sorts of policy shifts can be difficult to implement, and we are very happy that this change is being made so that there are no future victims of this type of brutality within our state. However, we are curious how “necessary” and “imminent” will be defined within this policy. Again, these words are subjective, and we want to be sure no officer interprets it in a way that harms civilians.
 
300.8 Reporting the Use of Force

Including details about use of force and how situations are handled in their reports will be a very positive change to this policy. It would also be beneficial if all details are required with all incidents that are reported. This will protect the officers from liability issues.

We would like to voice our concern that there is the possibility of officers making excuses when critical and non-critical cases occur. We request that if these policies are not followed, the officer refusing to follow protocol be criminally investigated by an outside agency and elected Civilian Review Board, as refusal to comply suggests corruption, or that the involved officer may be attempting to conceal criminal activity.
 
300.9 Medical Consideration

Alongside ensuring that an officer should not obstruct an individual’s breathing, we’d like to request that officers are medically trained in order to not damage an individual’s airway or any other organs. We also request that other medical conditions be taken into consideration, such as asthma, mental illness, and environmental factors (e.g.: hot pavement, heat stroke, dehydration, frostbite, etcetera.) This requires that the officer engage an individual in conversation to find out if the individual has any specialized medical conditions. Taking the time to find out such things also helps de-escalate a situation and prevents officers from acting with inappropriate force out of reflex. 

Proper training in how to handle these situations will be beneficial to officers and the public alike, as they can take care of officers down, while also knowing how to help at risk individuals. We want to ensure that we are doing all we can to ensure the safety of our community.
 
300.10 Investigating Uses of Force

The requirement of two levels of supervisors reviewing all uses of force is great. However, it would be wise to require investigation of all instances of force, even if a situation does not involve critical injury. Officers have a significant amount of power, which comes with more responsibility. As service workers are under full surveillance with less power, we feel that officers should be held to an even higher standard. More power should equal more accountability, not less.

We are also concerned that a review by supervisors may not be sufficient to keep abuse of power in check. There is an unknown amount of corruption within the policing system. Again, we need elected, diverse Civilian Review Boards in place to go over these actions as well. The United States was built upon the idea of checks and balances, of keeping one group from having too much power over any other. Having a separate review board with the power to make lasting disciplinary decisions would apply this constitutional principle to the police force.

(New Subsection) Tactics Preceding Use of Force

This is a fantastic new policy. Implementing this will see a massive decline in cases of police brutality and civilian retaliation. As civilians are untrained in emotional control under stress, it’s natural for civilians to respond defensively when treated with aggression from police officers, which leads to escalation, prompted by police aggression.

Therefore, aggression, and aggressive behavior, needs to be strictly defined, and training needs to be rigorous and enforced. 

However, is police officers’ aggressive response to protestors also covered under this policy? Because when there is no riot occuring, officers dressed in riot gear who respond to protestors constitute aggressive behavior and escalate a peaceful protest to one in which civilians need to defend themselves against brutality and excessive force. Perhaps police officers need to be further trained in the definition of a “riot.”

Protesting in a street does not equate a riot. Dancing in the street in protest does not equate a riot. Protesters using their voices to call for accountability in police forces does not equate a riot. These actions are not tumultuous, violent, or cause public alarm, unlike police showing up at a peaceful protest with riot gear and tear gas. In these cases, it is the police who ought to be guilty of a riot. 
 
(New Subsection) No Deadly Force in Self-Harm Cases

We are extremely relieved to hear that a policy protecting individuals under extreme mental duress is finally being put in place. We are hopeful that other states will follow our lead and protect those who need help over violence.

However, we express doubts over the ability of police officers to discern, diagnose, and treat individuals in mental and emotional duress. Policies which prohibit officers from using force are good. But it would be infinitely better if police officers were not the first responders in such situations. This is where trained social workers need to come in and replace police officers. They deal with emotionally and mentally unstable individuals every day of their jobs and are trained to respond peacefully to take control of the situation. We urge the Salt Lake City and Unified Police Departments to hire more social workers and send them as first responders to mental health crises. 

Section 2: Search and Seizure (Section 310)

This policy, while a good start, does not delve deep enough into the issue to create any solid change in the way situations requiring search and seizure are handled. Utah currently has a law enforcing Implied Consent (Utah Code 41-6a-520). If this is not repealed, this new search and seizure policy will not be properly enforced.

Additionally, what happens if a camera is not available to the officer at the time, or if their body camera is broken? Will their word that explicit consent was given be applicable? How will this policy be enforced? There is the potential for much officer misuse of this policy unless additional measures are taken.
 
Section 3. Body Worn Cameras (Policy 422)

Specific disciplinary action against officers who fail to have their cameras on is a fantastic start. Cameras are an incredibly important part of keeping our communities safe. We want everyone to be protected, and having cameras to ensure we receive the full story of an incident will be an immense step towards that. If an officer is truly in danger, camera footage will help corroborate their story.

Cameras need to be mandatory at all times for this protection to be truly applicable. If cameras are removed or turned off while an officer is on the clock, there needs to be an immediate disciplinary review—while on the clock, officers should have nothing to hide from the public, just as medical, retail, and food personnel do not. Any time that an officer feels their camera needs to be off should be considered possibly criminal, just as it would be for any other frontline worker.

Additionally, this policy alludes to disciplinary action; we are curious to know what sort of discipline will roll out, and how it will be decided if discipline is necessary. If these things are decided by fellow officers, we worry that discipline will not be stringent enough. Will this be something that is monitored by an outside party? For this sort of situation, a Civilian Review Board would be exceptionally useful and necessary.

We also have concerns in regard to this policy and the recently passed SB 210—allowing the deactivation of body cameras for “confidential information”—this allows officers to use their own discretion as to when a camera can be turned off. We fear this allows far too much room for possible unlawful activity, as well as potential danger to our officers in the field. While we understand possible concern around confidential footage being made public domain, we also believe that all footage does not need to be made public record; but for the safety of all parties, on-duty officers would benefit from having their activity recorded and reviewed when necessary. With SB 210 in place, there are far too many possible exceptions to this improved mandate, allowing it to mean very little and cause very little change without strict enforcement.

An often heard reason for the lack of camera footage is that cameras malfunctioned or were broken. In regard to this issue, we suggest officers be required to wear multiple cameras, and that the cameras are subjected to consistent maintenance, updates, and charging. This will greatly lessen the likelihood of breakage, malfunction, and battery drainage. The cameras ought to be a part of an officer’s uniform, not to be removed or turned off while on duty under any circumstances.


The Black Fist Coalition strives to make an impact on the local Utah community and on the world by taking a stance against acts of inhumane violence, political corruption, and discrimination of any form.

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If you would like more information on this topic, please email contact@insurgence.us