Trust between law enforcement agencies and the people they protect and serve is essential in a democracy. It is key to the stability of our communities, the integrity of our criminal justice system, and the safe and effective delivery of policing services.
- Final Report of the President’s Task Force on 21st Century Policing, May 2015.

8 Can’t Wait are eight recommendations regarding police use of force made by Campaign Zero. Campaign Zero is a project of We The Protesters, Inc. Campaign Zero was developed with contributions from activists, protesters and researchers across the nation. This data-informed platform presents a package of policy solutions to end police violence in America. It integrates community demands and policy recommendations from research organizations and President Obama's Task Force on 21st Century Policing.”

Campaign Zero has ten categories of policies it promotes to improve policing: End Broken Windows Policing, Community Oversight, Limit Use of Force, Independently Investigate & Prosecute, Community Representation, Body Cams/Film the Police, Training, End For-Profit Policing, Demilitarization, and Fair Police Union Contracts. The 8 Can’t Wait recommendations limit use of force.

This document provides an analysis surrounding the policy and legal implications of each of the 8 Can’t Wait use of force policy recommendations. It concludes that the Beaverton Police Department’s policies and practices are in accord with 94 percent of the 8 Can’t Wait policy recommendations made by Campaign Zero.

This estimated measurement of policy agreement is calculated as follows. With regard to six of the eight recommended policies, the department finds that there is full concurrence between BPD’s policy and Campaign Zero’s recommended policy. With regard to the two policies not in full accord, there is still substantial overlap between the Beaverton Police Department’s policy and Campaign Zero’s recommended policy. The department estimates the overlap in policy agreement to be about 75 percent for each of the two policies. One hundred percent agreement on six use of force policies and 75 percent agreement on two use of force policies equals about 94 percent agreement over all eight policies.

The policy analysis of this document is organized as follows. The title of each of the 8 Can’t Wait policy recommendations is listed below in bolded and underlined headers. Below each header is the Campaign Zero description of the policy recommendation. This is followed by a description of the standard that the Campaign Zero project uses on its 8 Can’t Wait “compare city” website page to measure a city’s compliance with each of the eight policies. The Campaign Zero policy description and the standard used to measure compliance with its recommended policy is not always identical.

Sometimes the 8 Can’t Wait “compare city” website page describes compliance with a Campaign Zero policy recommendation using qualifying language that is missing from the Campaign Zero description of the same recommended policy. This can lead to confusion regarding whether a city complies with an 8 Can’t Wait policy recommendation.

To avoid confusion and improve understanding about the Beaverton Police Department’s compliance with the 8 Can’t Wait policy recommendations, for each 8 Can’t Wait policy recommendation set out in this document there is a description of the department’s relevant policies and practices associated with the recommended policy. This is followed by an assessment of whether those departmental policies and practices comply with the 8 Can’t Wait policy recommendation as described by Campaign Zero and/or by the 8 Can’t Wait “compare city” website page.

1. Ban Chokeholds & Strangleholds

Campaign Zero’s recommended policy regarding chokeholds & strangleholds reads, “NECK HOLDS PROHIBITED. Law enforcement officers shall not use chokeholds, strangleholds, Lateral Vascular Neck Restraints, Carotid Restraints, chest compressions, or any other tactics that restrict oxygen or blood flow to the head or neck.”

The qualifying language on the 8 Can’t Wait “compare city” website reads, “Are chokeholds and strangleholds (including carotid restraints) explicitly prohibited, except in situations where deadly force is authorized?”

The State of Oregon has a statewide policy on chokeholds and strangleholds. Oregon House Bill 4203, enacted in 2020, provides that a peace officer may not use force that impedes normal breathing or circulation of blood of another person by applying pressure on throat or neck, unless the circumstance is one in which the peace officer may lawfully use deadly physical force.

The Beaverton Police Department promptly made all sworn personnel aware of HB 4203 when the bill became law. Incorporation of HB 4203 text into BPD policy will be finalized this month (September 2020).

For many years before the adoption of HB 4203, BPD instructed its officers to AVOID the neck/throat area during use of force situations. The department does not train its officers on chokeholds, strangle holds or similar tactics. The department does not unconditionally ban these tactics because officers may need to use them in deadly force situations to defend others or themselves.

Adopting Campaign Zero’s recommended policy that unconditionally prohibits all neck holds could create a situation where an officer is faced with a set of circumstances in which the use of a chokehold or stranglehold would preserve the life of the officer or a bystander, but by doing so the officer will have violated department policy. This violation of policy would expose the officer to potential disciplinary action and could lead to civil liability due to an officer acting outside of policy.

Additionally, regardless of a person’s employment as a police officer, Oregon law allows a person to use deadly physical force under certain circumstances. Adoption of Campaign Zero’s recommended policy could place a greater restriction on police officers than on others with regard to the lawful right to self-defense.

In contrast to Campaign Zero’s description of a policy banning chokeholds and strangleholds, the 8 Can’t Wait “compare city” page provides an exception to the ban on chokeholds and strangleholds (i.e., “except in situations where deadly force is authorized”). This exception fully resolves the department’s concern with the unconditional nature of the Campaign Zero recommended policy on chokeholds and strangleholds.

In summary, BPD complies with Oregon law and the ban on chokeholds and strangleholds described on the 8 Can’t Wait “compare city” website page. Neither BPD nor the state of Oregon complies with the Campaign Zero recommended policy prohibiting -- without exception -- all neck holds, chokeholds, strangleholds and similar tactics. The department has made all sworn officers aware of the requirements of HB 4203 and is in the process of updating its written policies to incorporate the requirement of the recently enacted bill.

2. Require De-Escalation

Campaign Zero’s recommended policy regarding de-escalation reads, “Prior to using physical, non-deadly and/or deadly force, all law enforcement officers must use proper de-escalation techniques to decrease the likelihood that law enforcement officers will resort to force and to increase the likelihood of cooperation between law enforcement officers and members of the public.”

The qualifying language on the 8 Can’t Wait “compare city” website page reads, “Does the policy require officers to de-escalate situations, when possible?”

For years, the Beaverton Police Department has trained its officers in de-escalation techniques with the goal of reducing risk of injury to everyone involved in a use of force event. As a recent example, during the department’s 2020 annual training, officers attended a class on de-escalation and scenario-based training.

BPD is in the process of adopting policy language that directs the use of de-escalation techniques as appropriate and when circumstances allow. In the vast majority of circumstances, officers have the opportunity to engage in de-escalation techniques such as adjusting communication techniques, establishing rapport, using appropriate non-verbal communication techniques, and leveraging time and tactics to their advantage. These skills are trained and expected and will be memorialized in policy.

Campaign Zero’s recommended policy would mandate de-escalation techniques in every circumstance. This fails to recognize the dynamic, unpredictable, and violent nature of some police encounters. An assailant intent on causing death or serious physical injury to an officer or a bystander may not provide an officer with sufficient time to de-escalate a situation that requires immediate intervention. Significant time can pass as an officer perceives or observes a threating situation or person, assesses the person’s intent, makes a decision to act, and subsequently takes action. Adding de-escalation time to these split-second situations could lengthen the amount of time officers and members of the public are at risk.

BPD complies with the 8 Can’t Wait qualifying language (“require officers to de-escalate situations, when possible“). The department does not comply with the Campaign Zero recommended policy to the extent that policy requires all law enforcement officers to use de-escalation techniques regardless of circumstances. The department is in the process of updating its written policies to include more specific language on the use de-escalation techniques.

3. Require Warning Before Shooting

Campaign Zero’s recommended policy language regarding warning before shooting reads, “The law enforcement officer shall issue a verbal warning, when feasible, and have a reasonable basis for believing that the warning was heard and understood by the individual to whom the warning is directed prior to using deadly force against the individual.”

The qualifying language on the 8 Can’t Wait “compare city” website page reads, “Are officers required to give a verbal warning, when possible, before shooting someone?”

Oregon House Bill 4301, passed in 2020, requires a peace officer to give verbal warning and reasonable opportunity to comply before using physical force or deadly physical force, if reasonable opportunity to do so exists. BPD promptly made all sworn personnel aware of the requirements of HB 4301 when the bill became law.

Additionally, BPD Policy 300.4(b) already reads, “a verbal warning should precede the use of deadly force, where feasible.” An amendment to the policy to incorporate the HB 4301 requirement that a warning be given before using physical force of any kind (not just deadly physical force) will be finalized this month (September 2020).

The Beaverton Police Department does not require a warning before using physical force (including deadly physical force) because officers may not have time to safely provide a warning prior to acting to protect themselves or others. The same principles as stated above regarding the principle of de-escalation applies to warnings.

Both the Campaign Zero’s recommended policy and the policy as described by the 8 Can’t Wait “compare city” page are not absolute because of the “when feasible” language.

Additionally, it should be noted that in one regard Oregon law and BPD policy limit police use of force more than either version of proposed recommended policy. On account of the enactment of HB 4301, the state now requires a police warning when feasible before an officer uses physical force of any kind, not just deadly physical force.

In summary, BPD’s policy on warnings before using deadly force is consistent with the Campaign Zero recommended language and the 8 Can’t Wait policy recommendation described on the “compare city” website page. The department is in the process of updating its written policies to incorporate the requirement of recently enacted HB 4301.

4. Exhaust All Other Means Before Shooting

Campaign Zero’s recommended policy regarding the exhausting of all alternatives before shooting reads, “Law enforcement officers of [Insert Jurisdiction] Police Department shall only use physical force when no other viable option is available and when all non-physical options are exhausted,” and “The law enforcement officer has exhausted all reasonable alternatives to the use of deadly force, including de-escalation, other reasonable means of apprehending the suspect, defending themselves or others…”

The qualifying language on the 8 Can’t Wait “compare city” page reads, “Are officers required to exhaust all other reasonable alternatives before resorting to deadly force?”

This policy recommendation relating to exhaustion of alternatives is strongly associated with the policy recommendation relating to de-escalation. In the vast majority of circumstances, officers have the opportunity to engage in de-escalation techniques such as adjusting communication techniques, establishing rapport, using appropriate non-verbal communication techniques, and leveraging time and tactics to their advantage. If a police agency successfully de-escalates situations, the agency should use deadly force only when the use of force is plainly justifiable.

As explained earlier, BPD complies with the qualifying language relating to de-escalation as described on the 8 Can’t Wait “compare city” website page, but as explained below, the department does not comply with the policy recommendation requiring exhaustion of all other means before shooting. Campaign Zero’s recommended policy prohibits the use of any physical force if any other viable option to the use of physical force is available and then only after all non-physical options are exhausted.

The recommended policy fails to recognize the dynamic, unpredictable, and violent nature of some police encounters. With 20-20 hindsight, many can second-guess how someone else should have handled a situation. Police officers don’t have this opportunity. Police officers sometimes need to make decisions in the moment, with no opportunity for reflection or planning.

The qualifying language on the 8 Can’t Wait “compare city” website page is better policy in the opinion of the department. That policy requires the exhaustion of “all other reasonable alternatives before resorting to deadly force.” Concern remains, however, on account of the use of the word “exhaustion,” which is an absolute term meaning using something up or of being used up completely.

Mandating exhaustion in every circumstance fails to recognize the dynamic, unpredictable, and violent nature of some police/community interactions. An assailant intent on causing death or serious physical injury to an officer or member of the community may not provide an officer with sufficient time to de-escalate a situation or use physical control, physical force, or serious physical force prior to deadly force.

In summary, BPD does not comply with either the Campaign Zero recommended policy on exhausting all other means before shooting or the 8 Can’t Wait policy recommendation described on the “compare city” website page.

5. Duty to Intervene

Campaign Zero’s recommended policy language regarding the duty to intervene reads, “All law enforcement officers must intervene when they reasonably believe that a law enforcement officer is using or is about to use unnecessary or excessive force in violation of this mission, and must report the incident to a supervisor. Failure to report incidents involving the use of unnecessary or excessive force will result in disciplinary action.”

The qualifying language on the 8 Can’t Wait “compare city” page reads, “Are officers required to intervene when witnessing another officer using excessive force?”

BPD Policy 300.2.1 (Duty to Intercede) reads, “Any officer present and observing another officer using force that is clearly beyond that which is objectively reasonable under the circumstances shall, when in a position to do so, intercede to prevent the use of unreasonable force. An officer who observes another employee use force that exceeds the degree of force permitted by law should promptly report these observations to a supervisor.”

Oregon House Bill 4205, passed in 2020, was recently enacted into law and provides criminal penalties for failure to report excessive force. A pending policy update will add legislative language to BPD policy on this topic.

In summary, BPD’s policy on the duty to intervene is consistent with Campaign Zero’s recommended policy and the 8 Can’t Wait policy recommendation described on the “compare city” website page. The department is in the process of updating its written policies to incorporate the requirement of recently enacted HB 4205.

6. Ban Shooting at Moving Vehicles

Campaign Zero’s recommended policy regarding banning the shooting at moving vehicles reads,

“Officers shall not discharge a firearm at or into a moving vehicle unless the occupants of the vehicle are using deadly force, other than the vehicle itself, against the officer or another person, and such action is necessary for self-defense or to protect the other person; shall not intentionally place themselves in the path of, or reach inside, a moving vehicle; and shall attempt to move out of the path of a moving vehicle. • Moving into or remaining in the SHALL NOT be justification for discharging a firearm at the vehicle or any of its occupants. An officer in the path of an approaching vehicle shall attempt to move to a position of safety rather than discharging a firearm at the vehicle or any of the occupants of the vehicle. [Philadelphia PD Policy] • Officers should not shoot at any part of a vehicle in an attempt to disable the vehicle. • Officers shall not discharge a firearm from his or her moving vehicle. Shooting accurately from a moving vehicle is extremely difficult and therefore, unlikely to successfully stop a threat of another person.”

The qualifying language on the 8 Can’t Wait “compare city” website page reads, “Are officers prohibited from shooting at people in moving vehicles unless the subject presents a separate deadly threat other than the vehicle itself?

BPD Policy 300.4.1 (Shooting at or from Moving Vehicles) reads, “Shots fired at or from a moving vehicle are rarely effective. Officers should move out of the path of an approaching vehicle instead of discharging their firearm at the vehicle or any of its occupants. An officer should only discharge a firearm at a moving vehicle or its occupants when the officer reasonably believes there are no other reasonable means available to avert the threat of the vehicle, or if deadly force other than the vehicle is directed at the officer or others. Officers should not shoot at any part of a vehicle in an attempt to disable the vehicle.”

BPD policy considers the extremely limited circumstance where an officer may need to shoot at a moving vehicle to preserve an officer’s or bystander’s life. Similar to above, explicitly prohibiting shooting at moving vehicles in any circumstance fails to recognize the dynamic, unpredictable, and violent nature of some police/community interactions. Creating a more restrictive policy potentially creates a situation where an officer may be legally and morally justified in shooting at a moving vehicle, yet outside of department policy, creating potential liability for the officer and the city.

BPD does not comply with either the Campaign Zero recommended policy on banning the shooting at moving vehicles or the 8 Can’t Wait policy recommendation described on the “compare city” website page.

7. Require Use of Force Continuum

The Campaign Zero Model Use of Force Policy does not specifically use the term “Use of Force Continuum.” The policy does however read in part, “In all cases where force is used, only the minimum degree of force which is necessary shall be employed. The minimum degree of force is the lowest level of force within the range of objectively reasonable force that is necessary to effect an arrest or achieve a lawful objective.”

The qualifying language on the 8 Can’t Wait “compare city” website page reads, “Is a Force Continuum or Matrix included in the Policy, defining the types of force/weapons that can be used to respond to specific types of resistance?”

The Beaverton Police Department trains and requires officers to use objectively reasonable force in accordance with established case law such as Graham v. Connor and Tennessee v. Garner. Mandating a continuum suggests a sequential progression by which certain “levels” of force are attempted and then “higher” levels of force are employed when “lower” levels are ineffective. In some circumstances, officers may employ a level of force such as physical contact or physical control, but when those are ineffective be forced to use serious physical control. In other circumstances, for example, it would be inappropriate and unsafe to expect an officer to use pepper spray or an expandable baton when a subject poses an immediate deadly threat to the officer or member of the public.

Adherence to a policy which is consistent with established case law recognizes the nature of use of force encounters and ensures officers can appropriately respond to use of force situations and be within department-established policy. Adopting Campaign Zero recommended policy language regarding a use of force continuum could create a situation where an officer is faced with a set of circumstances in which a particular use of force is required to preserve the life of the officer or third parties, but by not following a sequential process as suggested in a continuum, the officer would have violated department policy exposing themselves to potential disciplinary action, personal liability, and the city to civil liability due to an officer acting outside of policy.

BPD Policy 300.1.1 (Definitions) within the Use of Force Policy provides definition of force as follows:

• Deadly Force - Force reasonably anticipated and intended to create a substantial likelihood of causing death or very serious injury.
• Force - The application of physical techniques or tactics, chemical agents or weapons to another person. It is not a use of force when a person allows him/herself to be searched, escorted, handcuffed or restrained.
• Physical Control – The use of techniques intended to control an individual that are not likely to cause a physical injury. Escort holds, wrist locks, takedown techniques, waist restraints, and handcuffing are some examples of physical control.
• Physical Force – The use of any impact weapon or technique that is likely to cause a physical injury. TASER, less lethal munitions, focused blow(s), canine bite, pepper spray, edged weapon, spike strips, and the Pursuit Intervention Technique (PIT) maneuver are some examples of physical force.

While these definitions cannot possibly list every type of resistance encountered, they do provide the types of force or weapons appropriate for the various definitions.

In summary, BPD’s policy on the use of force continuum is consistent with the Campaign Zero recommended policy and the 8 Can’t Wait policy recommendation described on the “compare city” website page.

8. Require Comprehensive Reporting

Campaign Zero’s recommended policy language regarding comprehensive reporting reads in part, “To promote transparency and accountability of actions involving the use of force against civilians, law enforcement officers shall report any use of force involving physical controls when the subject is injured, complains of injury in the presence of officers, or complains of pain that persists beyond the use of a physical control hold. Officers shall also report any use of force involving the use of personal body weapons, chemical agents, impact weapons, ECWs (i.e. Tasers), vehicle interventions, K-9 bites, and firearms. Additionally, officers shall report the pointing of firearms or ECWs (i.e. Tasers) at a subject.”

The qualifying language on the 8 Can’t Wait “compare city” page reads, “Are all uses of force required to be reported, including the pointing of a firearm at a civilian?”

BPD Policy 300.5 (Reporting the Use of Force) reads in part, “Any use of force by a member of this department shall be documented promptly, completely and accurately in an appropriate report, depending on the nature of the incident. The officer should articulate the factors perceived and why he/she believed the use of force was reasonable under the circumstances.” BPD Policy 300.5.1 (Use of Force in the Police Report) requires the “pointing of a firearm at a person” to be reported.

BPD’s policy on comprehensive reporting is consistent with the Campaign Zero recommended policy and the 8 Can’t Wait policy recommendation described on the “compare city” webpage.