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It has been over almost two weeks since Berkeley Copwatch publicly released disturbing footage of an African American man kneeling before five Berkeley police officers with his empty hands in the air. The man was shown talking to the officers just before they shot him with what BPD identified as a “less-lethal foam baton round”. This concerning encounter raises important questions about what constitutes “de-escalation” and under what conditions Berkeley Police Officers should be allowed to discharge their less lethal (potentially lethal) weapons.

It is important to understand what a “less lethal” weapon can do. Generally, these weapons are used in riot situations to prevent individuals from engaging in violent acts. Increasingly, Berkeley officers are using these weapons in routine encounters. For example, Copwatch recently observed BPD officers using them when investigating a bike theft at a homeless encampment and they have become commonplace at protests regardless of the presence of violence. However, these munitions can also seriously injure people. They are intended to incapacitate a suspect through the infliction of significant, blunt trauma. Injuries sustained from these weapons can be long lasting and, according to the product specs from one distributor of foam baton rounds, “Shots to the head, neck, thorax, heart or spine can result in fatal or serious injury.” 

This is why we prefer to call them, “potentially lethal “ weapons and we do not take the use of such munitions lightly, although it seems that BPD increasingly does. When should such weapons be discharged? BPD has some guidance on this question from their own General Order U-2. While most of the related sections instruct officers to employ less-lethal munitions to prevent some greater physical harm, one section authorizes its use for failure to comply in a timely fashion: 

“Less-than-lethal force shall only be used in the following situations, and, where feasible, after some warning has been given: 

(b) To overcome the resistance of a physically combative person, or to gain compliance from a non-compliant person reasonably believed to be armed;” 

When is it right to shoot a man who has already partially complied with officer demands by kneeling on the ground? The subject of the video, William Brown, was talking with officers when he was shot. He made no aggressive movement, but was hesitant to lay down on the sidewalk. Although it was later revealed that he wore a legally sanctioned knife on his belt, he had nothing in his hands. Officers brought less lethal weapons to the scene and within six minutes of the initial call to dispatch, an officer called in to report less lethal weapons had been deployed and requested wound care. How much time was actually spent employing “de-escalation” tactics? Does the Chief believe that the tactics worked or is the deployment of less lethal weapons considered to be “de-escalation”? 

Chief Greenwood defends the officer’s use of these extreme measures because he claims that the man dared officers to shoot him if he stood up and cited this as an indicator of a potential “suicide by cop” situation. If Chief Greenwood truly believes that this is the situation the officers were facing, then their conduct contradicts the recommendations of the Police Executive Research Forum (PERF), a national research organization that establishes best practices for officers. 

According to PERF, the best way to deal with a person who is a potential suicide is as follows: 

“Pointing a firearm elevates the subject’s level of anxiety and can make it impossible to communicate with the person. “If an officer says, ‘I’m here to help you,' but is pointing a firearm at the suicidal person, it’s conflicting messages. And people will always believe the nonverbal message,” said police psychologist Dr. John Nicoletti." 

It is further recommended that officers be aware of their verbal cues. 

Do not bark orders. Make small requests, one at a time. 

· For example, if the subject has his hands behind his back, do not yell “Show me your hands!” That can raise the subject’s anxiety level, which is counter-productive. 

Instead, make a request rather than issuing an order. Say, “Can you do me a favor and show me your hands? I want to make sure you don’t have a weapon, so we can take some time and talk. I want to talk to you about what’s going on with you today, but first I need to know you’re unarmed.” 

Perhaps the 8-hour CIT training is not enough to provide officers with the skills they need to minimize injury and find alternatives to the use of potentially lethal weapons. Copwatch continues to believe that the increasing use of these munitions is a matter of urgent concern and this incident must be examined by an independent group of experts. 

We continue to request access to the police report, jail logs, CAD report, Use of Force reports and any other documents (including body camera footage) that can help to shed light on why officers made the decision to shoot a man on his knees with a potentially lethal weapon.  

We do not consider a BPD press release to be the final word in this matter or a suitable substitute for a genuine inquiry complete with source documents and community involved evaluation of officers’ actions. 

This incident has broader implications for how officers respond to calls involving people with mental health disabilities, addiction disorders or other factors that can impair their ability to respond to officers. We hope that BPD will be transparent and comply with the California Records Act Request that was submitted by Copwatch on March 17, 2020. We believe that our community is humane enough to seek violence only as a last resort and creative and educated enough to avail ourselves of current alternatives and approaches that seek to keep our whole community as safe as possible.  

Additional information can be found at www.berkeleycopwatch.org 

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