subject pulled away from the officer but did not otherwise actively resist arrest, attempt to flee, or pose an immediate threat).
Indeed, officers' unreasonable ECW use violates FPD's own policies. The department prohibits the use of force unless reasonable alternatives have been exhausted or would clearly be ineffective. FPD General Order 410.01. A separate ECW policy describes the weapon as "designed to overcome active aggression or overt actions of assault." FPD General Order 499.00. The policy states that an ECW "will never be deployed punitively or for purposes of coercion. It is to be used as a way of averting a potentially injurious or dangerous situation." FPD General Order 499.04. Despite the existence of clearly established Fourth Amendment case law and explicit departmental policies in this area, FPD officers routinely engage in the unreasonable use of ECWs, and supervisors routinely approve their conduct.
It is in part FPD officers' approach to policing that leads them to violate the Constitution and FPD's own policies. Officers across the country encounter drunkenness, passive defiance, and verbal challenges. But in Ferguson, officers have not been trained or incentivized to use de-escalation techniques to avoid or minimize force in these situations. Instead, they respond with impatience, frustration, and disproportionate force. FPD's weak oversight of officer use of force, described in greater detail below, facilitates this abuse. Officers should be required to view the ECW as one tool among many, and "a weapon of need, not a tool of convenience." 2011 ECW Guidelines at 11. Effective policing requires that officers not depend on ECWs, or any type of force, "at the expense of diminishing the fundamental skills of communicating with subjects and de-escalating tense encounters." Id. at 12.
- FPD's Use of Canines on Low-level, Unarmed Offenders Is Unreasonable
FPD engages in a pattern of deploying canines to bite individuals when the articulated facts do not justify this significant use of force. The department's own records demonstrate that, as with other types of force, canine officers use dogs out of proportion to the threat posed by the people they encounter, leaving serious puncture wounds to nonviolent offenders, some of them children. Furthermore, in every canine bite incident for which racial information is available, the subject was African American. This disparity, in combination with the decision to deploy canines in circumstances with a seemingly low objective threat, suggests that race may play an impermissible role in officers' decisions to deploy canines.
FPD currently has four canines, each assigned to a particular canine officer. Under FPD policy, canines are to be used to locate and apprehend "dangerous offenders." FPD General Order 498.00. When offenders are hiding, the policy states, "handlers will not allow their K-9 to engage a suspect by biting if a lower level of force could reasonably be expected to control the suspect or allow for the apprehension." Id. at 498.06. The policy also permits the use of a canine, however, when any crime—not just a felony or violent crime—has been committed. Id. at 498.05. This permissiveness, combined with the absence of meaningful supervisory review and an apparent tendency to overstate the threat based on race, has resulted in avoidable dog bites to low-level offenders when other means of control were available.
In December 2011, officers deployed a canine to bite an unarmed 14-year-old African-American boy who was waiting in an abandoned house for his friends. Four officers, including a
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