Jonathan J. Rusch

Jonathan J. Rusch is Adjunct Professor of Law at Georgetown University Law Center and at American University Washington College of Law, teaching courses on anti-corruption law,  anti-money laundering and counter terrorism financing law.  He has served as Deputy Chief for Strategy and Policy in the U.S. Department of Justice’s Fraud Section, Director of the U.S. Treasury Department’s Office of Financial Enforcement, and Counsel to the President’s Commission on Organized Crime, as well as Senior Vice President and Head of Anti-Bribery & Corruption Governance at Wells Fargo & Company.  His current research interests include the application of behavioral sciences to organizational compliance, including corporate entities and police organizations.

In the discussions on how to improve policing, one of the articles of faith in law enforcement circles is the importance of training.  As one article by authors with law enforcement experience put it (with slightly mixed metaphors), “training constitutes the glue of effectiveness that forms the foundation for successful law enforcement efforts.”

While much of the public debate today is about reducing harm to citizens, and the right police training to help that to happen, there is another, less visible dimension to police training: if training involving use-of-force is not well controlled, then the law enforcement officers and role-playing participants participating in that training are also at risk.  Several examples from recent years show the kinds of risks that can occur in poorly controlled mock exercises:

In 2013, during Baltimore police training exercises, a training instructor reportedly “mistook his service weapon for a paint-cartridge pistol” and shot a police recruit in the head, critically injuring him.  The recruit was released from the hospital ten days later, but the incident led to the temporary suspension of six instructors, including the head of the training academy.  The Baltimore Police Commissioner later stated, “We had a major procedural breakdown in our systems, and we’re working to correct those. We’re expanding this [review] to ensure we have proper protocols and we’re serving this city in a constitutional way.”

In 2016, a Florida woman who had been selected to participate in a “shoot/don’t shoot” role-play exercise by her local police department was accidentally shot and killed by a police officer who had left live rounds in his service weapon.

In 2018, the Vermont Police Academy ended use of a training exercise that was part of the required 16-week basic training for Vermont police officers, after Burlington police officers suffered concussions and other injuries from repeated blows to the head by trainers.  The exercise, which involved a trainer playing the role of an inebriated hitchhiker, called for the “hitchhiker” to strike trainees in the head with his fist when the trainees looked down at the “hitchhiker’s” identification. Although recruits and the trainers reportedly wore full protective body gear, including padded headgear, eleven officers described being hit by “roundhouse” or “sucker” punches, being knocked to their knees, suffering concussions, and experiencing hearing loss.  On one day in March 2018, there police recruits were sent to the hospital, “two with head injuries and a third with a knee injury.”

In 2019, the Louisiana State Police (LSP) temporarily suspended defensive-tactics training after multiple police cadets were injured (some seriously) during the same week.  The LSP Colonel said only that the training had gone “outside the normal parameters,” but launched an internal investigation, met personally with the injured cadets to apologize for what happened, and had three state troopers transferred out of the training division.  One trooper who was overseeing training was later demoted in connection with the incident.

A June 2020 memorandum by the U.S. Department of Justice’s Office of Inspector General (OIG) provides further evidence that without sufficient supervisory guidance and control, use-of-force mock training by law enforcement officers can result in unnecessary risk of harm to participants and nonparticipants alike.  The OIG memorandum examined mock exercises by Federal Bureau of Prisons Special Operation Response Teams (SORT).  SORT reportedly “are normally used almost exclusively for dealing with violent incidents at federal correctional facilities,” though some SORT members were recently deployed to the District of Columbia in connection with the George Floyd-related demonstrations.

Relevant Policies and Authorities

The OIG memorandum summarized SORT qualification and training policies.  It observed that while the BOP Correctional Services Manual (Manual) sets out eleven qualifications that all SORT members and team leaders must meet, and specifies the number of hours for monthly and annual training, it “does not contain any training requirement associated with conducting mock exercises.”

The memorandum also stated that the Manual “provides minimal guidance on mock exercises.”  The Manual provides that staff assigned to conduct a mock exercise should “consider” (1) determining what plan to evaluate and identifying time limits for the test; (2) identifying  participants and staff monitors; (3) providing a method for terminating the test should a real crisis (e.g., actual escape, disturbance, or staff injury) occur; (4) arranging for a review of the exercise and submitting documentation upon conclusion; and (5) preparing a report of findings for follow-up review that addresses all concerns during the exercise.  With regard to the use of weapons or munitions during mock exercises, the Manual makes only highly general statements that “appropriate safety precautions will be observed” and “where armed posts are involved, such posts will be notified and the Captain will have monitors in place to ensure that appropriate safety precautions are taken.”

In addition, the memorandum stated that the Manual “does not contain a policy statement or any guidance on the appropriateness of the use of force during training exercises.”  With regard to the use of chemical agents, oleoresin capsicum (OC), stun guns, and distraction devices, the Manual includes a number of general statements, such as (1) before using a chemical agent or OC, “staff are equipped with working and well-maintained gas masks”; (2) OC and chemical agents may be harmful to an individual who has “respiratory or cardiovascular disease, chronic dermatitis, or psychosis”; (3) medical staff should be consulted before use of OC or chemical agents; and (4) staff should use “extreme caution” before deploying distraction devices in “small or confined areas.”

The Manual also provides that “all aspects of a calculated use of force incident must be recorded,” and when BOP staff must use immediate force, “staff are obligated to obtain a video camera and begin recording the event as soon as feasible.”  Finally, a BOP Program Statement that specifically addresses the use of OC spray states that OC spray “will be used to protect staff, inmate(s), and others from an inmate(s) or visitor(s) posing a threat and when other methods of control are not effective.” Although that Program Statement does not contain guidelines for the use of OC spray during mock exercises, it does state that “inert OC dispensers are authorized for use” when training staff to use OC aerosol spray.

Mock Exercises Involving Injury to Staff Members

The memorandum reported that in 2019, two SORT mock exercises resulted in BOP staff members sustaining injuries.  In the first exercise, the SORT used two “flash bang”-type munitions to enter the exercise location. The second “flash bang”

hit a staff member role player and detonated, causing significant injury requiring surgery and ongoing treatment for that staff member. The BOP subsequently determined that the particular flash bang deployed during the exercise was not an authorized distraction device munition listed in the Manual.

In addition, in its review of this incident, the BOP was unable to locate the Tactical Operation Order (TOO) governing this mock exercise.

In the second exercise, BOP administrative staff members who were allegedly not involved in the exercise secured themselves in a business office shortly after the exercise began. These uninvolved staff members, according to the memorandum,

included employees on restricted duty due to medical conditions. During the exercise, SORT members allegedly demanded the door to the room where the uninvolved staff were located be opened, attempted to breach the room using a crow bar, sprayed OC into the room without obtaining authorization, entered the room, and fired a simunition round [i.e., a “paint marking system” authorized for SORT training that uses rounds that are nonlethal, but painful if an individual is struck without protective gear] that struck a staff member in the chest.  In addition, there allegedly was a physical altercation, including pushing and shoving, between SORT members and the uninvolved staff members. Some of these events allegedly occurred after the uninvolved staff members allegedly yelled that they were “out of role” and allegedly informed the SORT that staff members in the room had medical conditions.

With regard to the second exercise, the OIG identified that certain individuals, “from other BOP institutions or the BOP Regional Office, were responsible for observing and certifying the SORT’s actions.”  One monitor was physically present with the SORT team members, a second monitor was in the Command Center, and a third monitor was outside the facility.

Four factors, however, prevented the monitors from effectively observing and overseeing SORT conduct during the mock exercise:

• Role of the Monitors: “[I]t was not clear whether the role of the monitors included ensuring that the exercise was conducted safely.
• Monitors’ Ability to Communicate: “The monitors were not provided with radios, and therefore the two monitors not physically present with the SORT team members did not have the ability to communicate with the SORT.”
• Lack of Access to Tactical Operations Order: The two monitors who were not in the Command Center “also did not have access to the [Tactical Operations Order (TOO)] outlining the plan for the mock exercise, which was located in the Command Center.” The memorandum also noted that during its review of this incident, the BOP “was unable to locate” the TOO.
• Absence of Emergency Preparedness Officer: The OIG “determined that the Emergency Preparedness Officer who created the scenario for this incident left the building where the exercise was taking place before the SORT sprayed OC.”

The memorandum also identified a fifth factor, concerning the ability of the Incident Commander (IC), who is ultimately responsible for SORT decisions and actions during a major mock exercise, to observe and communicate.  Even though BOP policy provides that the IC should monitor mock exercises by security camera from the Command Center, during the second exercise the IC

was only able to monitor the exercise by viewing stationary security camera feeds in the lobby of the institution. As a result, the IC was dependent on information relayed to the IC or observable by the limited camera views available to the IC.

Because there were no security cameras in the business offices, the IC did not observe any of the actions described above, and “was not equipped with a radio that would have enabled the IC to communicate with the SORT.”

Conclusions and Recommendations of the Inspector General

The OIG’s fundamental determination was that

inappropriate and dangerous events transpired during the two mock exercises described above. Most seriously, and among other things, SORT members deployed a distraction device munition in a confined space, which was not authorized for use under BOP policy; SORT members deployed real OC spray rather than inert OC spray during a training exercise, allegedly without proper authorization; and SORT members used force, including firing a simunition round, against staff members who were allegedly yelling to the SORT that they were “out of role” and physically vulnerable.

The OIG memorandum also found that “while current BOP policy provides guidance on SORT training generally, . . . the BOP has inadequate policies governing mock exercises.”   Among other things, the BOP policies that the OIG reviewed “did not clearly specify the types of weapons, less than lethal weapons, and munitions, if any, that are authorized for use during BOP training exercises; and did not provide safeguards to ensure that exercises are conducted safely.”  To address these concerns, the memorandum stated that “[m]ore specific and comprehensive language should be incorporated into current guidance to address the concerns” that the memorandum raised.

The OIG memorandum set out four recommendations to address the concerns described above:

1. The BOP “should suspend all SORT mock exercises until comprehensive guidelines for mock exercises are developed.”
2. The BOP “should develop comprehensive guidelines governing mock exercises,” including requiring “at least one monitor whose sole role is to be the designated Safety Officer,” and filming of mock exercises “for live video and recorded for training purposes and evaluation.”
3. The BOP “should develop written policies concerning the types, if any, of weapons, less than lethal weapons, and munitions that may be used during training exercises and when and how such weapons, less than lethal weapons, and munitions may be used during training.”
4. “All SORT members and designated training monitors should receive remedial training on SORT policy and use.”

Comment

No police training exercise that involves use of force can be expected to eliminate all possibility of injury to willing participants.  In fact, a 2018 International Association of Chiefs of Police report on reducing officer injuries found “a relationship between use-of-force training and overall decreased severity of injury, suggesting that proper, proactive preparation for such inherently dangerous encounters is imperative.”  (Emphasis supplied)

The exercises that the OIG reviewed, however, show the risks that police departments face when they fail to establish and maintain proper guidance, supervision, and control of participants in mock use-of-force exercises.   Police and sheriff’s departments should read the OIG memorandum and use it to benchmark their own current policies, guidance, and conduct of mock exercises.