Discretion, interpretation at heart of St. Louis police use of force policy for protests

Police departments are standing by their officers’ response to protesters after days of civil disobedience throughout the St. Louis region.

Although three lawsuits have been filed against the St. Louis Metropolitan Police Department, officials are confident the majority of their officers complied with the department's use-of-force policy, which establishes guidelines, though one area law professor argues those guidelines are up for interpretation.

“I think the officers of the St. Louis Police Department and our supporting agencies from other jurisdictions have done a tremendous job,” said Maj. Mary Warnecke, deputy commander of the department’s Bureau of Professional Standards. “This is a high level of stress for everyone involved — the community and law enforcement — and tensions were high.”

Since Sept. 15, thousands have expressed nonviolent outrage at St. Louis Circuit Judge Timothy Wilson's decision to find former St. Louis officer Jason Stockley, who is white, not guilty of first-degree murder in the 2011 death of Anthony Lamar Smith, a black man. There have been, as Warnecke described it, “incidents that turned violent when multiple officers were injured,” especially in the first few days when businesses’ windows were smashed.

The department updated its use-of-force policy in 2014 after former Ferguson officer Darren Wilson shot and killed 18-year-old Michael Brown, which also resulted in sometimes-violent protests.

The 48-page document outlines police procedure regarding the use of force, with six pages devoted to outlining how officers should handle civil disobedience actions and when they can deploy of chemical agents. But the guidelines aren’t perfectly clear, said Greg Magarian, a law professor at Washington University.

Magarian said language in the document gives a fair amount of discretion to officers on the scene.

Before the protests began, police discussed possible actions that would be supported by the policy, Warnecke said.

“Most acts are going to be commanded by a commander that’s in charge of the event and who will be on scene,” she said. “If there is a dynamic set of circumstances — say we have a brick being thrown at me — of course that officer would be expected to prevent any kind of consequence from that.”

That’s a problem for Magarian, who is also a constitutional law scholar.

“It seems to me that if push comes to shove, it would be difficult to nail down a situation in which — at least many situations — in which an officer violated these policies, because at crucial points the document seems to give officers a lot of discretion,” he said.

After nearly two weeks of protests, the St. Louis police department faces three lawsuits alleging excessive policing tactics in downtown on Sept. 17, two days after Stockley was acquitted.

And the St. Louis County Police Department is being criticized for 22 arrests during Sunday’s protest at the St. Louis Galleria. County Police Chief Jon Belmar said his department “used an incredible amount of discretion during these periods of civil unrest.”

Police policy

St. Louis Metropolitan Police Department officers receive civil disobedience training throughout the year and are told to let people exercise their First Amendment rights until confronted with “criminal activity.” 

But the department’s guidelines for “mass civil disobedience contexts and to establish command protocol” do not specify which tactics can be used in order to protect officers' safety, though the policy outlines how they’re expected to behave.Officers may respond to protesters with force if they feel the need to protect themselves or others from physical harm, restrain protesters who are resisting or “bring any unlawful situation safely and effectively under control.”

Such behaviors that could lead to a use of force and/or an arrest, according to the documents, are:

• Physical contact with an officer;
• Verbal threats;
• Spitting;
• Pointing a finger inches from an officer’s face;
• Throwing objects;
• Destruction of property, burglary, assault;
• Blocking access to highways, hospitals, homes, etc.

There are several steps officers are told to take when they need to control a crowd, break it up or or address perceived threats, including being on the scene and, in order:  

• Make verbal commands, sounds to encourage crowds to leave;
• Use pepper spray; requires consent from the police chief or assistant police chief unless it’s a violent situation, then incident commander can give go-ahead;
• Use “open-hand tactics” (aka using bare hands) to restrain people with intent to minimize injuries;
• Use “closed-hand tactics” such as punches, kicks or other strikes.
• For launchable chemical agents like tear gas, officers must use hand-tossed smoke grenades first, and only after receiving approval. If crowds stick around, the commanding officer then can approve launching chemical agents.

The escalation of these tactics is based on instructions from supervisors or commanders on the scene or officer discretion.
The use of chemical agents is restricted by policy. St. Louis officers can’t use it to scare or punish people or to break up crowds that aren’t breaking laws — unless there there are “unambiguous warnings” issued and people are given opportunity to leave the area safely.

The document makes it clear that in some cases officers can use their discretion about how to deploy tactics if they perceive the situation to be violent, that property damage is likely, feel threatened personally or think there the crowd is at risk of harm. And that flexibility is “incredibly disturbing,” Magarian said.

“What law enforcement seems to have done in these recent protests is take the presence of violent actions somewhere in the vicinity as a justification for escalating force against everyone in the vicinity, whether we’re talking about people who are nonviolent protesters, residents of the area, journalists, whoever they might be,” he said.

Official at both the county and city police departments said they are reviewing the days when mass arrests were made to determine whether they complied with policy and procedures. Mayor Lyda Krewson and SLMPD Interim Police Chief Larry O’Toole also have asked for the federal government to help investigate claims made in the lawsuits and complaints filed with the department’s Internal Affairs Division.

City residents who think they’ve been mistreated by police may file a formal complaint with the Internal Affairs Division either online at slmpd.org, by phone at (314) 444-5652 or in person at the main headquarters at 1915 Olive Street in downtown St. Louis.

Those in the county may visit the department’s website, stlouisco.com, to fill out a complaint form online or may download an official complaint form and mail it.

Follow Willis on Twitter: @WillisRArnold

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