At this session at PRIMA’s 2018 Annual Conference, Chief Ken Wallentine, Senior Legal Advisor, Lexipol, led a discussion around mental illness and how police respond.
Ken Wallentine is a Special Agent of the Utah Attorney General Investigation Division, where he directs the Attorney General Training Center and provides use of force training and coordinates the virtual reality force and de-escalation training program. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody death. Wallentine also serves as Senior Legal Advisor for Lexipol, the nation’s leading provider of public safety risk management policies and resources.
With 1 out of 3 Americans suffering from some level of mental illness, it is critical for police agencies to address mental illness scenarios in their policies and to support those policies with appropriate training. Wallentine walked through several recent police interactions during this session at the 2018 PRIMA Annual Conference with a focus on how a community can be policed when mental illness manifests through perceived criminal activity or domestic calls.
De-escalation is the leading first-response tactic with some states mandating training and many agencies voluntarily providing it. It is important to understand the liability of failure to provide de-escalation training as courts are upholding cases where an alleged constitutional injury would have been avoided if the agency had properly trained its officers. When determining if de-escalation belongs in your policies, consider that the National Consensus Policy on Use of Force states: “An officer shall use de-escalation techniques and other alternatives to higher levels of force consistent with his training whenever possible and appropriate before resorting to force and to reduce the need for force”. Also consider the Final Report of the President’s Task Force on 21st Century Policing which summarizes that law enforcement agency policies for training on use of force should emphasize de-escalation where appropriate, policies should address procedures for implementing a layered response to mass demonstrations that prioritize de-escalation, and basic recruit training must include tactical and operations training on lethal and non lethal use of force with an emphasis on de-escalation and tactical retreat skills. There is some evidence of the effectively of de-escalation. One year after implanting de-escalation training. Las Vegas reported a 50% drop in officer involved shootings.
ADA accommodations in interactions with police have also been a recent consideration. The Supreme Court has ruled that police can assess and secure a scene first and then should be responsible for assessing the need for accommodation.
When assessing the need for force, traditionally Graham v. Connor three factor test is applied, 1. severity of the crime, 2. risk to the public and officers, or 3. is there an attempt to escape. Frequently, this does not apply to mental illness calls so a new standard was needed. Hill v. Miracle sets the new standard and states the assessment of use of force should consider: 1. medical emergency renders person incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others, 2. force is reasonably necessary to ameliorate the immediate threat, or 3. was the force used more than reasonably necessary under the circumstances.
Finally, Wallentine suggested tactical withdraw. When none of the factor tests indicate use of force, it is OK to strategically withdraw agencies from the situation under the premise that sins of omission are generally not actionable.
Overall, Wallentine recommends the goal is to “Slow Down.” Whenever possible, take the time to step back, access the use of force for criminality versus mental health, and then determine resolution to the interaction.