JENNINGS SIGMOND, P.C. BY: Marc L. Gelman IDENTIFICATION NO. 78857 James E. Goodley IDENTIFICATION NO. 3 15331 1835 Market Street, Suite 2800 Philadelphia, PA 19103 (215) 922?6700 MICHAEL G. LUTZ LODGE NO. 5 OF THE FRATERNAL ORDER OF POLICE, through its Trustee Ad Litem, JOHN Plaintiff V. CITY OF PHILADELPHIA Defendant 0?59ft1 Attorneys for Plaintiffs COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY AUGUST TERM, NO. m; ~14th APPLICATION FOR RELIEF SEEKING A PRELIMINARY INJUNCTION AND NOW, comes the Plaintiff, Michael G. Lutz Lodge No. 5 of the Fraternal Order of Police, through Trustee Ad Litem John McNesby, who ?les this Application for Relief Seeking a Preliminary Injunction and in support thereof allege the following: 1. The Petitioners ?le this application pursuant to Rule of Appellate Procedure 1532(a) and Rule 1531 of the Rules of Civil Procedure. The Petitioners incorporate by reference the Action for Declaratory Judgment and Injunctive Relief in this action and attached hereto as Exhibit In the absence of a preliminary injunction, the City of Philadelphia (?City?) will continue to enforce unilaterally implemented Directive in which the City will Mi chael Lutz Lodge No 5 Of The Fraternal 70 5160000 10. 11. 12. 13. publicly release the identities of FOP represented police of?cers who are involved in on?duty shootings, even before an investigation has been fully conducted. Unilateral implementation of Directive 10.1 violates the Labor Relations Act, 43 Pa. Stat. Ann. On July 2, 2015, charges were ?led at the Labor Relations Board concerning unilateral implementation of Directive 10.1, and are still pending for adjudication by the Board. Aside from the violations of state labor law, the public dissemination of police of?cers? identities endangers the of?cers and their families. On June 8, 2017, Of?cer Ryan Pownall was involved in an on-duty shooting of one David I ones. Since that time, the City publicly released the identity of Of?cer Pownall. Of?cer Pownall and his family have since experienced regular threats to their safety, as well as harassment, from activists concerned with Mr. Jones? death. Of?cer Pownall and their family suffer great anxiety and fear for their safety. Other FOP represented Of?cers and their families are endangered by the City?s enforcement of its unilaterally imposed Directive 10.1. The FOP bargaining position has been irreparably harmed by the City?s unilateral change, as it must bargain from a position of weakness and offer concessions merely to regain a term and condition of employment which was illegally deprived from them. A preliminary injunction is necessary to avoid immediate and irreparable injury that cannot be compensated for in damages. 14. 15. 16. 17. Once an Of?cer?s identity has been released, that information cannot be recalled and the right to privacy has been lost. Greater injury will result to the Plaintiffs and FOP members than will be suffered by the Defendant if the requested injunctive relief is granted. The Plaintiffs? right to relief is clear and there is a reasonable likelihood of success on the merits. The public interests will be served by this Court?s granting of injunctive relief in this case. The public has a strong interest in enforcement of stable labor relations, as well as in Of?cer safety. WHEREFORE, Plaintiffs request this Honorable Court to enter a Temporary Injunction: (1) staying the enforcement of the City?s Directive 10.1; and (2) entering such other relief as the Court deems just and proper. Respectfully submitted, Marc. L. Gelman Marc L. Gelman, Esquire James E. Goodley, Esquire JENNINGS SIGMOND, PC. 1835 Market Street, Suite 2800 Philadelphia, PA 19103 (215) 351?0623 Attorneys for Plaintiffs Date: August 25, 2017 IN THE COURT OF COMMON PLEAS PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF TRIAL DIVISION - CIVIL fre?na/?o/r 0%2/4/12/ Plaintiff/Petitionei Term, 204 No. 7 I a fwd: i: Control No 6?5 Defendant/Resg?ddent RULE AND NOW, this day of Upon consideration of the foregoing Motion/Petition a RULE is hereby entered upon the Respondent to Show cause why the relief requested therein should not be granted. RULE RETURNABLE on the day of at in Courtroom City Hall, Philadelphia, PA 19107. BY THE COURT: IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY MICHAEL G. LUTZ LODGE NO. 5 OF THE RATERNAL ORDER OF POLICE, through its Trustee Ad Litem, JOHN Plaintiff AUGUST TERM, NO. v. CITY OF PHILADELPHIA tom ms 71 :2 a. ?255m?-k?? Defendant SPECIAL INJUNCTION ORDER AND NOW, this day of August, 2017, upon consideration of the Application for Relief Seeking A Preliminary Injunction and the Af?davits in Support thereof, and it appearing that immediate and irreparable injury will result to the applicants before notice can be served and a hearing can be held thereon unless Defendants are enjoined and restrained as prayed, the City of Philadelphia is hereby prohibited from enforcing its unilaterally imposed Directive 10.] until the issues raised herein have been ?nally judicially determined by this Court or the Labor Relations Board. This Order will be effective immediately upon presentation to this Court of Plaintiffs? bond in the amount of By the Court JENNINGS SIGMOND, P.C. BY: Marc L. Gelman IDENTIFICATION NO. 78857 James E. Goodley IDENTIFICATION NO. 3 15331 1835 Market Street, Suite 2800 Philadelphia, PA 19103 (215) 922?6700 Attorneys for Plaintiffs MICHAEL G. LUTZ LODGE NO. 5 OF THE FRATERNAL ORDER OF POLICE, through its COURT OF COMMON PLEAS Trustee Ad Litem, JOHN OF PHILADELPHIA COUNTY Plaintiff AUGUST TERM, NO. V. o?531? CITY OF PHILADELPHIA 3 {1&7 Defendant MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR INJUNCTIVE RELIEF AND NOW, come the Plaintiff, Michael G. Lutz Lodge No. 5 of the Fraternal Order of Police, through Trustee Ad Litem John McNesby, President, who submits this Memorandum of Law in Support of their Application for Inj unctive Relief in order to stay enforcement of the City?s Policy until the Labor Relations Board issues a ?nal ruling. In support thereof, Plaintiff alleges the following: I. FACTS Plaintiff Michael G. Lutz Lodge No. 5 of the Fraternal Order of Police through Trustee Ad Lirem John McNesby, President, is a non?pro?t corporation incorporated under the laws of Commonwealth of It is a labor organization that represents, for purposes of collective bargaining, police of?cers who are employed by the City of Philadelphia. As such, the FOP is a ?representative? of such police of?cers within the meaning of Section 1 of Act No. 111, 43 PS. 217.1. Defendant, City of Philadelphia (?City?) is a municipal corporation of the ?rst class and a political subdivision of the Commonwealth of pursuant to the First Class City Code, 53 Pa. C.S.A. ?13101 et seq. The FOP and City are parties to a Collective Bargaining Agreement As union and employer, both parties are required to bargain in good faith over all terms and conditions of employment. 43 Pa. Stat. Ann. 211.] et seq. On or about July 1, 2015, the City unilaterally implemented a policy requiring that in the event a City Police Of?cer is found to have discharged a ?rearm at a member of the public, the City would release of the name of said Police Of?cer to the public within 72 hours (?Policy?). McGrody Dec]. 1111 12-14. On July 2, 2015, the FOP ?led unfair labor practice charges at the Labor Relations Board against the City concerning unilateral implementation of the Policy. Id. at {l 15. The charges are currently pending at the PLRB for resolution. Id. at 11 21. On the evening of August 24, 2017, an FOP?represented police of?cer named Ryan Pownall, who was involved in the June 8, 2017 on-duty shooting of one David Jones, was threatened by several protesting Black Lives Matter af?liated activists at his home. Pownall Dec]. {[11 4, 12?19. Nearby the house, activists hung posters with Mr. Pownall?s picture stating: WANTED for the MURDER of David Thomas Jones Warning! He is considered armed and dangerous. He has killed and will kill again. Help bring him to justice for David Thomas Jones Wanted: the pig who murdered David Jones Id. at 11 11(e). The activists loudly yelled racist epithets, Obscenities and demands. Id. at 14-17. Mr. Pownall and his family have received regular death threats, online and over social media. Id. at 11 8-11. Mr. Pownall?s family has been terribly shaken by the event: Mr. Pownall?s wife has been ?in a constant state of alarm, panic and anxiety,? while Mr. Pownall believes that the threats he has received may be acted upon. Id. at 1111 22, 23. Mr. and Mrs. Pownall fear for the safety of their children. Id. at $1 20. II. ARGUMENT: THE CONDUCT 0F DEFENDANT SHOULD BE ENJOINED A. Standards Injunctive relief is ?considered an extraordinary remedy and may only be granted if the plaintiff has established a clear right to the relief sought.? Sofa v. Factoryville Sportmen ?s Club, 522 A.2d 1129, 1131 (Pa. Super. 1987) or, as in this case, where plaintiff has established a clear procedural right to pursue his administrative remedies. Mazzie v. Commonwealth, 495 Pa. 128, 432 A.2d 985 (1981). In determining whether to grant a preliminaly injunction, a court may consider the averments of the pleadings and petition, af?davits of the parties or third parties, or any other proof. 1531. The purpose of a preliminary injunction is to preserve the status quo as it exists or previously existed before the acts complained of, thus preventing irreparable injury or gross injustice. Maritans GP, Inc. v. Pepper, Hamilton Scheetz, 529 Pa. 241, 602 A.2d 1277, 1286 (1992). The court may grant the injunction only if the moving party establishes the following elements: 1) relief is necessary to prevent immediate and irreparable harm and/or gross injustice that cannot be compensated by damages; 2) greater injury will occur from refusing the injunction than from granting it; 3) the injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful conduct; 4) the wrong is actionable and the plaintiff 5 right to relief is clear; and 5) the injunction is reasonably suited to abate that wrong. School District of Wilkinsburg v. Wilkinsburg Education Ass ?11, 542 Pa. 335, 667 A.2d 5, 6 H2 (1995). These requisite elements are cumulative and, if one element is lacking, relief may not be granted. Norristown Municipal Waste Authority v. West Norriton Twp. Mun. Authority, 705 A.2d 509, 512 (Pa. melth. 1998). B. Plaintiff Meets All Of The Requisite Elements For Issuance Of Preliminary Relief 1. Plaintiff Has A Clear Right To Relief ?The ?clear right to relief element does not require the chancellor to determine the merits of the controversy at the preliminary injunction stage; rather, the chancellor need only determine, in addition to the other criteria, that the claim raises substantial legal questions.? T. W. Phillips Gas v. Peoples Natural Gas Co, 492 A.2d 776 (Pa. melth. 1985) (upholding injunction issued maintaining status quo to preserve the Public Utilities Commission?s jurisdiction pending its adjudication of the rights of the parties), citing oglersville and rexlertown Electric Co. v. Penn Power and Light Co, 271 Pa. 237, 114 A.2d 822 (1921). An employer?s unilateral implementation of a term or condition of employment violates the Labor Relations Act It shall be an unfair labor practice for an employer-? To interfere with, restrain or coerce employes in the exercise of the rights guaranteed in this act. To refuse to bargain collectively with the representatives of his employes, subject to the provisions of section seven of this act. 43 Pa. Stat. Ann. The Supreme Court has consistently held that unilaterally implemented changes violate the PLRA: As a refusal to bargain collectively over a mandatory subject of bargaining is an unfair labor practice, an employer's unilateral change of such a subiect without ?rst negotiating with the union has been held to similarly interfere with the employees' fundamental collective bargaining rights, as it works as a circumvention of the employer's duty to negotiate and thwarts the objectives of Act 111. Thus, akin to a refusal to bargain, a unilateral change of a mandatory subject of bargaining constitutes an unfair labor practice. See Ellwood City, 606 Pa. at 366?67, 998 A.2d at 595. City of Erie v. Lab. Rel. Bd., 32 A.3d 625, 635 (Pa. 201 1) (citing Borough of Ellwood City v. Labor Relations Bah, 998 A.2d 589, 595 (2010)). (Emphasis added). Here, the FOP has demonstrated a ?clear right to relief,? as it is beyond dispute that the City unilaterally implemented the Policy, and did not bargain with the FOP over the subject. I . Injunctive Relief is Necessary to Prevent Immediate and Irreparable Harm that Cannot be Compensated by Damages. Monetary damages cannot cure the harm experienced by Plaintiff for several reasons. First, without the Court granting the requested preliminary relief, the bargaining position would remain irreparably weakened. In future negotiations, the OP will be forced to play ?catch up? merely to regain its position prior to the City?s illegal unilateral change. The FOP would likely have to provide the City other concessions merely to retain that which was illegally deprived from them. Secondly, the safety and well?being of members such as Ryan Pownall, would be irreparably damaged because the name of any member who allegedly discharged a ?rearm would forever be released to the public - even before a full investigation could be conducted. Such a disclosure exposes members and their families to real danger, and at the least a constant state of fear. Once disclosure is made, it cannot be recalled, and the anxiety members and their family face cannot be undone. Moreover, entry of an injunction would merely restore the parties to the status quo and abate the wrong. 2. Greater Injury Will Occur From Refusing the Injunction Than Granting it. The issues raised in this action are of extreme importance to the Plaintiff and all members of the FOP. Through enforcement of the Policy, the safety of Police Of?cers and their families are placed injeopardy. This danger is far from theoretical or speculative, for just last night, Police Of?cer Ryan Pownall, his wife and two children were threatened by protestors. CONCLUSION For the foregoing reasons, the elements required for injunctive relief have been met, and the remedy requested in the underlying Application should be granted. Respectfully submitted, JENNINGS SIGMOND, P.C. ls/ Marc. L. Gelman Marc L. Gelman IDENTIFICATION NO. 78857 James E. Goodley IDENTIFICATION NO. 315331 1835 Market Street, Suite 2800 Philadelphia, PA 19103 (215) 922-6700 VERIFICATION I, Jig/?u Plaintiff/Defendant, verify that the facts set forth in the foregoing are true and correct to the best of my information, knowledge and belief. I understand that the statements contained herein are subject to the Penalties of 18 Section 4904 relating to unsworn falsi?cation to authorities. (Print Name) (Signature) Date: 5 CERTIFICATION OF SERVICE I, @311 [fa/AU" hereby certify that a true and correct copy of the foregoing Motion/Petition and accompanying pa ers, was served on the below listed addresses by First?Class i] (date): United States mail, postage pre?paid on Name: Q41 ?04400), Address: ?cfg Address: City, State, Zip A Name: Address: Address: City, State, Zip Code: Name: Address: Address: City, State, Zip Code: 4 . .- .-. PHILADELPHIA POLICE DEPARTMENT DIRECTIVE 10.1 Issued Date: 9-18-15 Effective Date: 9-18-15 Updated Date: SUBJECT: USE OF FORCE THE DISCHARGE 0F FIREARMS (PLEAC 1.3.2, 1.3.3, 1.3.5, 1.3.6, 1.3.7) 5.5131195. 10 WEEK Elli: PAGE NUMBER Policy 1 De?nitions 2 Use of Force 3 Use of Force Decision Chart 4 Specific Prohibitions 6 Reporting Discharges of Firearms 7 Investigation of Police Discharges 13 Custody and Disposition of Firearms 15 Discharged by Police Personnel Discharge Involving Animals 17 Release of Information Regarding Of?cer '59 Involved Shootings (018) Annual Review 21 Supervisors Firearms Discharge Checklist 22 Of?cer Involved Shooting (DIS) Safeguard 23 Protocol Memorandum (Example) PHILADELPHIA POLICE DEPARTMENT DIRECTIVE 10.1 Issued Date: 948?15 Elfeetive Date: 9-18-15 Updated Date: SUBJECT: USE OF FORCE INVOLVING THE DISCHARGE 0F FIREARMS (PLEAC - 1.3.2, 1.3.3, 1.3.5, 1.3.6, 1.3.7) 1. POLICY A. It is the policy of the Philadelphia Police Department, that of?cers hold the highest regard for the sanctity of human life, dignity, and liberty of all persons. The application of deadly force is a measure to be employed only in the most extreme circumstances and all lesser means of force have failed or could not be reasonably employed. B. The most serious act in which a police officer can engage during the course of their of?cial duties is the use of deadly force. The authOrity to carry and use ?rearms in the course of public service is an immense power, which comes with great responsibility. C. Police Of?cers shall not use deadly force against another person, unless they have an objectively reasonable belief that they must protect themselves or another person from death or serious bodily injury. Further, an of?cer is not justi?ed in using deadly force at any point in time when there is no longer an objectively reasonable belief that the suspect is dangerous, even if deadly force would have been justified at an earlier point. in time. (PLEAC 1.3.2) D. When feasible under the circumstances, police officers will give the suspect a verbal warning before using deadly force. E. Police of?cers using their professional judgment should not discharge their weapon when doing so might unnecessarily endanger innocent people. F. Subjects may be physically or mentally incapable of responding to police commands due to a variety of circumstances including but not limited to alcohol or drugs, mental impairment. medical conditions, or language and cultural barriers. Of?cers should be mindful of this when making use 0 force ec . G. After using deadly force, of?cers shall immediately render the appropriate medical aid and request further medical assistance forthe suspect and any other injured individuals when necessary and safe to do so and will not be delayed to await the arrival of medical assisrance. (PLEAC 1.3.5) DIRECTIVE 10.1 - ?l H. Of?cers who witness inappropriate or excessive force have a duty to report such violations to a supervisor and Intemal Affairs. 2. DEFINITIONS A. Objecg'vely Rwonable: Is a Fourth Amendment standard whereby an of?cer's belief that they must protect themselves or others from death or serious bodily injury is compared and weighed against what a reasonable or rational of?cer would have believed under similar circumstances. This determination is made by reviewing all relevant facts and circumstances of each particular case, including, but not limited to, (I) the severity of the crime at issue, (2) whether the suspects poses an immediate threat to the safety of the of?cers or others. (3) whether the suSpect is actively resisting arrest or attempting to evade arrest by flight. NOTE: Resisting arrest or ?ight alone would not justify the use of deadly force. While the US Supreme Court identified three (3) factors that should be evaluated in determining whether an of?cer?s use of force was objectively reasonable, this list was not intended to be all inclusive. The TOTALITY OF THE CIRCUMSTANCES that led an of?cer to believe force was needed is critical. Other factors such as, whether an individual is violent, the possibility that the individual is armed, and the \il number of persons with whom an of?cer must contend with at the time are all relevant factors to I 1? consider. INDIVIDUAL FACTORS alone would not give a reasonable of?cer the belief that deadly force is necessary. B. Resistance: Is an act by an individual that opposes an of?cer?s lawful commands. There are two types of resistance. 1. Active Resistance: 15 de?ned as the use of physical force to defy an of?cer?s lawful arrest or attempt to gain control of a situation that requires police action. DIRECTIVE 10.1 - 2 2. Passive Resistance: Is defying an of?cer's lawful order without the use of physical force. Behaviors may include not moving, going limp, locking of arms or tightening of the body. C. Serious Bodily 13133: is de?ned as bodily injury which creates a substantial risk USE OF FORCE of death, causes serioustis?gurement, or pron-aeted loss or impairment 0 the function of any bodily member or organ. A. GQAL: To always attempt to de-escalate any situation where force may become necessary. In the event force becomes unavoidable, to use only the minimal amount of force necessary to overcome an immediate threat or to e?'ectuate an arrest. The amount of force, the condoned use of any force. and the type of police equipment utilized. all depends upon the situation being faced by the of?cer. Howev once the threat has been overcome. or a subject is secured in custod tis an of?cer?s responsibility to de?escalate and inunediately address any injuries the suspect may have sustained. B. USE OF FQRCE QECISION CHART: The following diagram illustrates the amount of force an o?icer should use based on the suspect's behavior and threat. It is the suspect?s behavior that places the of?cer andfor others in danger. The suspect's threat is the primary factor in choosing a force option. However, the officer should Elie.? consider the totality of the circumstances to include, but not limited to, a sus t? to alcohol or dru m?w?nmnt, medical conditions, or the prom weapons. DIRECTIVE 10.1 - 3 ?b - BALLOEJHICI USE OF FORCE DECISION CHART ESCALATION . u; Use the option the trepresents the amount of force tie reduce the immediate threat. C. The following are examples of how to interpret the Use of Force Decision Chart. These examples are for illustrative purposes and not intended as an exhaustive list. i. No force is required or authorized when the offender is compliant non- aggressive and reSponds to verbal commands. Of?cers may need to handcuff such offenders but this is not considered use of force. No use of force report is required under these circumstances. Moderate/limited use of force may be required when the offender is non?compliant and is resisting the of?cer's commands. Such behaviors may include pushing or pulling away, locking arms. or tightening of the body. Force including control holds, and 0C Spray is authorized under these circumstances. Verbal aggression by itself does not warrant the use of force. EXCEPTION: Protesters/Demonstrators that are exercising their Constitutional Rights of Free Speech or Assembly and are non-compliant and passively resisting of?cer?s commands, 0C Spray SHALL 391: BE USED to overcome ?re resistance. Rather. officers will disengage and contact a supervisor. Ifnecessary, additional of?cers will be used to overcome the resistance. The use of the Electronic Control Weapon (ECW) and/or ASP/Baton is authorized when the offender is physically aggressive or assaultive and there is a immediate likelihood that they may injure themselves or others. Such behaviors may include punching, kicking, grabbing, 0r approaching with a clenched ?st. EXCEPTION: Protestorleemonstrators that are exercising their Constitutional Rights of Free Speech or Assembly and are non-compliant and passively resisting of?cer?s commands, ECW SHALL NOT BE USED to overcome the resistance. Rather, of?cers will disengage and contact a supervisor. If necessary, additional of?cers will be used to overcome the resistance. Deadly force is authorized when the of?cer has objectively reasonable belief that they must protect themselves or another person from the immediate threat of death or serious bodily injury. An of?cer may address an offender?s immediate threat with any option to the level of threat or lower. For example, an of?cer may use their ASP/Baton, 0C Spray, or ECW on an offender displaying assaultive behavior with a likelihood of injury to themselves or others. They cannot use an ECW on an offender who is only non-compliant. NOTE: The mere handcuf?ng of a compliant individual is not considered force. DIRECTIVE 10.1 - 5 SPECIFIC PFIOHIBITIONS A. cers shall not draw their ?rearms unless they reasonably believe an immediate rent for serious bodily injury or death to themselves or another person ts, Police of?cers shall not discharge their ?rearms in defense of property. Police of?cers shall not use a ?rearm as a club. Police of?cers shall not ?re warning shots under any circumstances. (PLEAC 1.3.3) Police of?cers shall ensure their actions do not precipitate the use of deadly force by placing themselves or others in jeopardy by taking unnecessary, overl . 1 1- - sive, or improper actions. It is often a tactically superior police procedure a, take cover or reposition, rather than the immediate use of force. Police of?cers shall not discharge their ?rearms to subdue a ?eeing individual who presents no immediate threat of death or serious physical injury to themselves or another person. Police of?cers shall not discharge their ?rearms FROM :1 moving vehicle unless the of?cers are being ?red upon. Shooting accurately from a moving vehicle is extremely dif?th and therefore, unlikely to successfully stop a threat of another person. Police of?cers shall not discharge their ?rearms a vehicle unless a person in the vehicle is immediately threatening the officer or another person with deadly force by means other than the vehicle of?cers or civilians are being ?red upon by the occupants of the vehicle). 1. A moving vehicle alone shall not presumptively constitute a threat that justi?es an of?cer's use of deadly force. 2. Of?cers shall not move into or remain in the path of a moving vehicle. Moving into or remaining in the path of a moving vehicle, whether deliberate or inadvertent, SHALL NOT be justi?cation for discharging a ?rearm at the vehicle or any of its occupants. An of?cer 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. NOTE: An of?cer should never place themselves or another person in jeepardy in an attempt to stop a vehicle. DIRECTIVE 10.1 - 6 3. The prohibitions regarding the discharge of a ?rearm at or from a moving vehicle exist for the following reasons: a. To avoid unnecessarily endangering innocent persons. both when inside the vehicle and in the vicinity. b. Bullets ?red at a moving vehicle are extremely unlikely to disable or stop the vehicle. c. Disabling the driver of a moving vehicle creates unpredictable circumstances that may cause the vehicle to crash and injure other of?cers or innocent bystanders. d. Moving to cover in order to gain and maintain a superior tactical advantage maximizes of?cer and public safety while minimizing the need for deadly or potentially deadly force. NOTE: Barring exigent circumstances, the driver is unconscious and the motor is still running), an of?cer shall never reach into an occupied vehicle in an attempt to shut off the engine or to recover evidence, since this has been known to result in serious injury to of?cers. I. Police of?cers with revolvers shall not under any circumstances cock a ?rearm. Firearms must be ?red double-action at all times. 5. REPORTING DISCHARGES OF FIREARMS A. The discharge of any ?rearm, whether accidental or intentional, by sworn personnel on duty or off duty (except test or target fire at a bona ?de pistol range or lawfully hunting game) will be reported as follows: I. The of?cer who ?red the weapon will: a. Immediately notify Police Radio of the occurrence and provide pertinent information regarding the need for supervisory personnel and emergency equipment if required. h. Inform the ?rst Supervisor on the scene of the location(s) of the crime scene(s) and the general circumstances relative to the preservation and collection of physical evidence. State whether they were wearing a body-worn camera (BWC) and if so, was it activated dun'ng the incident. DIRECTIVE 10.1 - 7 C. Make no of?cial statements to anyone except personnel from Internal Affairs. However, this provision shall not be construed to prohibit the of?cer from speaking to any counselor or union representatives regarding the incident while at Internal Affairs or at any time afterwards. The reporting of?cer may review their BWC video of the incident prior to making a statement. 2. Each of?cer at the scene of a discharge of a ?rearm by any police of?cer will: a. Notify Police Radio of the discharge, unless the of?cer knows Police Radio has already received such a noti?cation. Inform the ?rst Supervisor on the scene of the circumstances of the discharge and provide all relevant information concerning the incident. Ensure the provisions of Directive 4.1. ?Responsibilities at Crime Scenes? are followed. Report to the first supervisor on the scene, whether they had during the incident. 3. Police Radio will: a. b. Ensure that a district Supervisor is dispatched to the scene. Immediately make the following noti?cations: 1) Internal Affairs 2) Homicide Division (only when death occurs, is likely to occur, or an of?cer is struck by gun ?re) 3) Detective Division of Occurrence 4) District of Occurrence 5) District or Unit to which of?cer is assigned 6) Command Inspection Bureau (CIB), if applicable 7) Crime Scene Unit (CSU) 8) RTCC to identify all City owned or privately owned cameras 9) Police Advisory Commission (PAC) Executive Director Notify the Commanding Of?cer, Employee Assistance Program (BAP) of the police discharge. The Commanding Of?cer, EAP, will have police radio notify the on~call peer counselor and they will contact police radio for detaiis of the shooting. 4. First Supervisor on the scene will be responsible for the following: a. Ensure that Police Radio has been noti?ed of the incident. DIRECTIVE 10.1 - 8 b. Ensure that the provisions of Directive 4.1. ?Responsibilities at Crime Scenes" are carried out and protect and secure the crime scene. c. Determine which of?cer(s) discharged their weapon(s) by examining the magazine/cylinder of the weapon of each of?cer present during the discharge. d. Ensure any of?cer having left the scene prior to the Supervisor?s arrival will be recalled in order to have their weapon inspected. e. Determine if any of?cer at the scene had a BWC and whether it was on during the incident. 1) Collect all BWCs with video of the incident. 2) Ensure the videos are captured and stored as evidence. 3) The involved of?cer may review only their BWC video prior to making any of?cial statements to Internal Affairs. f. The involved officer will conduct a of the scene with the supervisor providing necessary information for the Supervisor?s Firearm Discharge Checklist (75-654) prior to viewing their BWC video. g. The supervisor will take possession of the evidence bag containing the of?cers weapon and transport the weapon to Internal Affairs. 1) Glock (send-automatic) weapon inspection: instruct the of?cer(s) to remove the magazine for inSpection and note the number of rounds. If the weapon has been ?red. record the number of remaining rounds and take possession of the magazine. Supervisors. who are not Glock-trained. are prohibited from physically handling the weapon (excluding the magazine) during the inspection. 2) Revolver in5pection: Pay special attention to the cylinder position before ordering the of?cer to open their weapon?s cylinder. Note the condition of each round in all chambers and what chamber was located under the ?ring pin when the cylinder was opened. If the weapon has been ?red, take note of the number of spent cartridges and take possession of all six rounds of ammunition, live or spent. DIRECTIVE 10.1 - 9 3) Patrol Shotgun inspection: In a situation where a police officer has discharged a patrol shotgun, a patrol supervisor will remove the remaining rounds from the magazine, open the action to make the weapon safe and make a note of the remaining rounds. Supervisors. who are not Patrol Shorguanatrol Rifle trained, are prohibited from physically handling the weapon (excluding the magazine) during the inspection. 4) Patrol Rifle inspectiom In a situation where a police of?cer has discharged a patrol ri?e, a patrol supervisor will remove the magazine, make the weapon safe, remove the remaining rounds from the magazine and make a note of the remaining rounds. Supervisors, who are not Patrol Shotgun/Patrol Ri?e trained. are prohibited from physically handling the weapon (excluding the magazine) during the inspection. NOTE: In the event the responding patrol supervisor is not trained to handle the patrol shotguulri?e. a trained supervisor from an adjoining district or a SWAT supervisor will be requested to respond to the location. it. Ensure information concerning the location(s) of the crime scene(s) and the general circumstances relative to the preservation and collection of physical evidence is provided by the involved of?ceds) and disseminated to the assigned investigator by remaining at the scene until the arrival of divisional detective personnel. The ?rst supervisor on the scene will use the Supervisors Firearm Discharge Checklist (a cepy is attached at the end of this directive) to determine required information. NOTE: The Supervisors Firearms Discharge Checklist card will be carried by all patrol supervisors. i. Will escort the in voived of?cer, if not incapacitated. directly to Internal Affairs. When reasonable, discharging of?cers should be transported separately. if additional vehicles are needed; additional supervisors will be summoned to provide transportation. NOTE: The first Supervisor on the scene (Corporal, Sergeant, or Lieutenant) will not delegate the responsibility of transporting of?cers to any other supervisor regardless of the districb?unit assignment of the of?cer(s) involved. However, command?level personnel (Captain or above) may assign a subordinate Supervisor to transport involved of?cers in the event a commander is the ?rst superior officer on the scene. DIRECTIVE 10.1 - 10 j. Will brief the PAC Executive Director or designee on all the known facts of the discharge. k. Ensure they follow the replacement weapon protocol in Section NOTE: The responding PAC observer WILL NOT be given access to the crime scene. 5. The Operations Room Supervisor (0R8) of the district of occurrence will: a. Make noti?cation via a computer terminal to lntemal Affairs by accessing the Use of Force Noti?cation Screen on the PPD Intranet homepage. (PLEAC 1.3.6) B. Replacement weapon protocol for Of?cer Involved Shootings (DIS). 1. This protocol will only be used when an of?cer discharges at a person, whether or not the person is struck, or in cases where the suspect may have handled the weapon in a struggle for the weapon) resulting in touch DNA evidence. The ?rst supervisor on the scene will ensure Police Radio noti?es the SWAT Unit assigned to the ROC Division where the discharge occurred. SWAT personnel will immediately reSpond to the location of occurrence to issue a replacement weapon, a paper evidence bag and protective gloves. The of?cer who ?red the weapon will remove the magazine, un?chamber the round and make the weapon safe by locking the slide to the rear. If the weapon is a revolver, the weapon will be unloaded and made safe. The ?rearm will be placed in the paper evidence bag, sealed, and the label will be ?lled out completely and turned over to the supervisor. a. To preserve the integrity of DNA evidence. latex or non?latex, gloves will be worn when securing. rendering safe and packaging the weapon in the paper evidence bag. The first supervisor on the scene will ensure that the paper evidence bag, with the label ?lled out completely and accurately, is delivered to Internal Affairs. NOTE: All officers and supervisors should carry personal protection equipment (PPE) latex or vinyl gloves) which are available at the Police Warehouse located at 660 East Erie Avenue. SWAT Units assigned to each ROC Division will carry replacement weapons (8?10 ?rearms) comprised of 9MM. 40, 45, and 38 calibers. The weapons will be carried on all tours and accounted for daily. DIRECTIVE 10.1 - 11 6. In the event that SWAT is unavailable training, barricade) the ORS at SWAT Headquarters will retrieve a replacement weapon from the vault and have it immediately delivered to the location of occurrence along with a paper evidence bag and protective gloves. Personnel assigned to the SWAT Operations Room will ensure they monitor Band on all tours. C. Reporting Discharges of Firearms OUTSIDE Jurisdiction l. The of?cer who ?red the weapon will: a. b. Call the local Emergency 9-1-1 to notify thejurisdiction of occurrence. Comply with the directions given by the local investigating law enforcement of?cials. Call the Philadelphia Police Radio Room at (215~686-1295) so the proper noti?cations can be made. 2. Police Radio will: a. Notify Command Inspection Bureau (CIB) or district/unit Commanding Of?cer depending on the time of occurrence. Notify Internal Affairs and provide pertinent information regarding the discharge. 3. Internal Affairs will: a. Be immediately noti?ed of any incident involving the discharge of a ?rearm by police. The Internal Affairs Shooting Team, will be noti?ed of any incident involving the discharge of a firearm by Philadelphia Police personnel. In addition, the Shooting Team will be noti?ed whenever a city issued or privately owned weapon of a Philadelphia Police Of?cer is discharged, intentionally or accidentally, by someone other than the respective of?cer. Notify the local investigative agency, speak to the assigned investigator. and request if Internal Affairs can reapond to the scene or meet with the investigator. Respond to any discharge within reasonable driving distance (2-3 hours). If permissible, obtain any documents and/or interviews pertaining to the discharge. DIRECTIVE 10.1 - 12 D. Research and Analysis Unit will: I. Report all crime through the online Uniform Crime Reporting System as speci?ed by the Federal Bureau of Investigation (FBI). B. INVESTIGATION OF POLICE DISCHARGES A. The Homicide Unit will: 1. Investigate all cases involving the discharge of ?rearms by police personnel resulting in or likely to result in death of a human being or when an of?cer is struck by gun?re. They will be responsible for the preparation of the Investigation Report (75-49) which will be forwarded to Intemal Affairs within seven (7) calendar days. (PLEAC 1.3.6) Ensure that all pertinent death noti?cations have been made. Ensure that any video that captured the incident is obtained, stored and processed as evidence. B. The Detective Division of Occurrence will: 1. Investigate all other cases involving the discharge of firearms by police personnel. They will be responsible for the preparation of the Investigation Report (75-49) which will be forwarded to Internal Affairs within seven (7) caiendar days. (PLEAC 1.3.6) Ensure that any videos that captured the incident are obtained and processed as evidence. NOTE: Other investigative units involved will coordinate their efforts with the assigned detective division. C. Crime Scene Unit personnel will: 1. Process the scene after conferring with the assigned investigator. D. The Discharging Officer?s Commanding Of?cer will: 1. 2. Ensure the Commanding Of?cer, Internal Affairs is noti?ed. Contact the Police Department?s Employee Assistance Program (BAP), within ?ve (5) business days, in order to arrange con?dential counseling whenever an of?cer has discharged their ?rearm, except at an animal. DIRECTIVE 10.1 - 13 NOTE: Commanding Of?cers may use their discretion regarding required EAP counseling when the discharge is at an animal. Be responsible for having the of?cer retrained at the Firearms Training Unit (FTU) before returning to duty (Exception: discharges at deer.) Whether or not the discharge results in death or injury to any person, the of?cer shall be temporarily assigned to non-street duties. (PLEAC 1.3.7) EXCEPTION: Of?cers who discharge at deer will be returned to duty immediame after arrival of an Internal Affairs investigator. Internal Affairs will not respond to the scene when SWAT has killed a deer or other wild animal, except canines. An of?cer will return to active street duty as soon as possible after the of?cer has attended their scheduled visit with Employee Assistance Program (BAP), completed their required training at the FTU and based on the recommendation of Internal Affairs. NOTE: Of?cers must be approved for return to active street duty by either the Police Commissioner or the First Deputy Commissioner. E. Commanding Of?cer, Employee Assistance Program (EAP) will: 1. Have the assigned peer counselor respond to Internal Affairs to meet the discharging of?cer for an initial assessment. During the initial assessment, the peer counselor will explain the emotions that the of?cer might be experiencing and explain the procedures that will occur following their discharge (Le. reporting to the FTU and EAR). NOTE: BAP peer counselors will only respond to police discharges where the suspect was fatally wounded or injured as a result of the discharge. The exception is when there is a request from the investigating shooting team, the officer's Commanding Of?cer, CIB or the Conunanding Of?cer, BAP. Have the peer counselor conduct a con?dential follow-up assessment and provide referral information to the of?cer. The of?cer will be encouraged to contact Penn Behavioral Health (PBH). Have the peer counselor, upon the completion of the session with EAP or the Penn Behavioral Health provided counselor; fax a memorandum to the Commanding Of?cer, Internal Affairs Shooting team, stating the officer has attended their appointment with EAP. All other information is prohibited from being released. All EAP sessions are STRICTLY CONFIDENTIAL and information pertaining to the session cannot be released without the of?cer?s permission. DIRECTIVE 10.1 - 14 NOTE: is a support service and is not involved in the investigation of the police shooting. F. Internal Affairs will: 1. Assist in all investigations involving discharges of firearms by police personnel. 2. Ensure a member of the Internal Affairs Shooting Team interviews the that discharged their weapon, separately. 3. Prepare a Supplemental Report (75-52) detailing the results of the lntemal Affairs investigation. (PLEAC l.3.6) NOTE: Upon completion of the supplemental report, the Chief Inspector, Of?ce of Professional Responsibility. will forward a complete report to the Deputy Commissioner, Of?ce of Professional Responsibility. who will forward it to the Police Commissioner. 4. Notify the Commanding Of?cer of the discharging of?cer's status. CUSTODY AND DISPOSITION OF ALL FIREARMS DISCHARGED BY POLICE PERSONNEL A. Internal Affairs will prepare a Property Receipt (75-3) at Internal Affairs containing the following information: the ?rearm?s make, model, caliber, and serial number. A second 75?3 will be prepared for the ?red cartridge(s) and un?red ammunition. Internal Affairs Police Shooting case number will be indicated on both Property Receipts. B. In discharges of ?rearms not resulting in injury and in any discharge (accidental or intentional) resulting in the shooting of an animal, the discharged firearm (including patrol shotguns and/or patrol ri?es) will be given to the transporting supervisor in accordance with the following guidelines: NOTE: When transporting a patrol shotgun and/or patrol ri?e, prior to leaving the scene, the transporting supervisor will secure the patrol shotgun and/or patrol ri?e in the vehicle lock box after making the weapon safe. 1. When the ?rearm will be returned, the assigned Internal Affairs investigator will designate, in the description section of the Property Receipt containing the ?rearm information. IS TO BE TEST FIRED AND RETURNE The assigned Internal Affairs investigator?s signature and date will follow. Internal Affairs will retain the white (control) copy of the Property Receipt for their records. DIRECTIVE 10.1 - 15 2. The transporting supervisor will transport the ?rearm. ?red cartridge(s), and un?red ammunition and both Property Receipts directly to the Firearms identification Unit (FIU). a. When the Firearms Identi?cation Unit (FIU). 843 North Street. Room 022 is open, FIU will test ?re and make every effort to expedite the examination and return the weapon to the involved of?cer. The test shots and firearm related materials (bullets, specimens, and/or ?red cartridge cases) will be. retained at FIU. NOTE: Evidence Intake Unit is open 24 hours a day. weekends, and holidays. . When FIU is closed. the Evidence Receiving Clerk Laboratory Division will aid the of?cer in securing their ?rearm in the mobile ?rearm?s storage box. A replacement ?rearm of the same caliber will irmnediately be issued to that of?cer. Subsequently, the FIU will contact the of?cer for return of their original ?rearm. . The ?rearm will be unloaded and made safe, but not cleaned prior to examination. . Upon completion of the FIU examination, a copy of the ?ndings will be forwarded to Internal Affairs and the pertinent detective division. C. In all deliberate shootings (not involving animals) where an injury or death occurs and all accidental discharges of firearms resulting in injury or death, Internal Affairs will: 1. 2. Assign an internal Affairs investigator who will interview the involved of?cer and determine if the ?rearm can be returned to the officer. If the ?rearm is to be returned to the of?cer. follow the procedure in Section 7-8-1 and 2 in this directive, except the actual transportation of the weapon to FIU will be done by Internal Affairs. If the ?rearm is not to be returned, the assigned Internal Affairs investigator will designate in the description section of the Property Receipt containing the ?rearm information one of the following: a. FIREARM IS TO BE TEST FERED AND A REPLACEMENT WEAPON. b. FIREARM IS TO BE TEST FIRED AND NOT ISSUE REPLACEMENT WEAPON. DIRECTIVE 10.1 - 16 4. The assigned Internal Affairs investigator?s signature and date will follow. internal Affairs will retain the white (control) copy of any Property Receipt. 5. The assigned Internal Affairs investigator will transport the ?rearm. ?red crutridge(s), and un?red ammunition. and both Property Receipts directly to the Firearms Identi?cation Unit (FIU). a. When the Firearms Identi?cation Unit (FIU) is open, the FIU clerk will take possession of the weapon and other material. b. When FIU is closed, the Evidence Receiving Clerk, Laboratory Division, will aid the lntemal Affairs investigator in properly securing the weapon and related material in the mobile ?rearm?s storage box. c. If a replacement firearm is to be issued, the involved of?cer, upon leaving Internal Affairs. will proceed to FIU or Evidence Receiving Cleric-Laboratory Division. 6. FIU will test ?re the ?rearm in question, forward a copy of the ?ndings to Internal Affairs and the pertinent Detective Division. D. City or Privately Owned Firearms 1. internal Affairs will determine the disposition of the City-owned firearm and notify FIU to transport the discharged ?rearm to the Firearms Training Unit. All other evidence, including ?red cartridge(s) and unfired ammunition will be stored at FIU until released by Internal Affairs. 2. During the second week of January, a status review of City-owned fuearms being retained under the above conditions will be conducted by the Commanding Of?cer, Firearms Training Unit. Internal Affairs will determine which weapons may be returned to inventory. The Commanding Of?cer, Firearms Training Unit will submit a ?nal report to the Deputy Commissioner, Organizational Services, by February 28'?1 of each year, detailing the status of all ?rearms being retained. 8. DISCHARGES INVOLVING ANIMALS A. Destroying Injured Deer l. Firearms should not he used to destroy injured deer when they are not presenting an immediate threat to the of?cer or another person. Attempt to contact the Game Commission at (610) 926-3136 or (610) 926-1966. DIRECTIVE 10.1 - 17 If the above agency is unavailable, and the seventies of the injuries are such that the animal should be destroyed for humane reasons, of?cers will ?rst request the assistance of the SWAT Unit, who will be responsible for its destruction. SWAT personnel will: Upon destroying an animal, be reSponsible for completing the preformatted memorandum and a 75-48. h. The memorandum and 75-48 will be submitted to the Internal Affairs Shooting Team within 24 hours of the incident. c. If the SWAT Unit is unavailable. the of?cer may destroy the deer, but only in the presence and on the orders of a Supervisor. NOTE: Usually one shot between the eyes or behind the ear of the animal should be suf?cient to complete the task. However, in the event it becomes necessary for police personnel to destroy any animal Suspected of being rabid by use of a ?rearm, it is preferred that the animal be shot in the body rather than the head. The head needs to be examined by the Philadelphia Department of Public Health. Police Radio will notify the Internal Affairs Shooting Team. The discharging of?cer and the on scene Supervisor will remain on the scene until their arrival. (Exception: When SWAT personnel have performed the task.) Consideration should be given before discharging a weapon to destroy any animal the close proximity of people and buildings. the type of back stop or ground). The Streets Department will be noti?ed, via Police Radio, to remove the carcass of deer or other animals found or destroyed by police personnel. Suspected rabid animals that are shot by police will be transported by Animal Care and Control Team (ACCT). Dogs that are shot by police will be transported by ACCT or to ACCT by police personnel. They will not be transferred to any veterinary hospital or private veterinarian even if, the animal is still alive. B. Discharges Involving Other Animals 1. Police of?cers shall not discharge their ?rearms at a dog or other animal except to protect themselves or another persoa from physical injury and there is no other reasonable means to eliminate the threat. or when acting consistently with existing Department guidelines authorizing the humane destruction of deer. DIRECTIVE 10.1 - 18 2. a. When on location with an injured animal which is not presenting an immediate threat to the officer or another person. every attempt should be made to con?ne or contain the animal and notify Police Radio to have them contact the Animal Care and Control Team (ACCT). In all cases where a dog is shot and injured by the police, the animal will be transported directly to ACCT for examination by a veterinarian. NOTE: Police personnel will not transport an injured dog shot by police to a veterinary hospital unless exigent circumstances exist and upon approval of a supervisor (ex. ACCT or SPCA is unavailable). 9. RELEASE OF REGARDING omcen INVOLVED SHoormes (one) A. A press conference and/or an of?cial press statement will be released by the Police Commissioner or designee within 72 hours of an of?cer involved shooting in which an individual was killed or wounded as a result of a weapons discharge by a member of the Department. The information will include officer?s name, years of service, assignment and duty status. 1. The of?cer(s) will be placed on Administrative Duty Status pending the outcome of the investigation. The release will contain a preliminary summary stating the circumstances of the incident known at the time and based on the facts collected and con?rmed by the investigators. The release will provide a brief synopsis of the incident, condition (injuries) of the individual, charges (if applicable), and the proceeding steps of the investigation. Names of the individual suspect or the of?cer will be released unless there are public safety concerns. A preliminary summary based on the facts collected and continued by the investigators will be placed on the Philadelphia Police Department?s website in the DIS (Of?cer Involved Shooting) section of the site. The summary on the Department?s website may be updated based on the Department's further investigation of the incident. B. The First Deputy will ensure the following steps are followed: 1. Ensure Internal Affairs provides the involved of?cer with a Safeguard Protocol memorandum when the of?cer makes their official statement. DIRECTIVE 10.1 - 19 2. Ensure that internal Affairs noti?es the Deputy Commissioner, Patrol Operations, Criminal intelligence, Police Radio and Public Affairs when the Safeguard Protocol is activated. C. The Commanding Of?cer, Criminal Intelligence in conjunction with DV 1C Social Media Investigative Support Team (SMIST), will perform a threat assessment on the DIS within seventy two (72) hours prior to disclosure of the of?cer?s identity and prepare a report. 1. The results of the threat assessment report will be forwarded to the First Deputy . Commissioner Field Operations or his designee, who will review the threat assessment report with the involved officer and their Commanding Of?cer. - r. 2. Field Operations will offer to provide a security detail at the officer's residence. longer if needed, following the release of information in reference to the Of?cer Involved Shooting. If the of?cer(s) lives outside the city, patrol will work with the affected jurisdiction to provide coverage or provide the coverage necessary if the outside jurisdiction is unable to do so. The ?nal decision to implement a security detail will be left to the of?cer?s discretion. a. If the involved of?cer resides within the boundaries of Philadelphia, the detail will be assigned to the district where the of?cer resides. b. If the involved of?cer resides outside the boundaries of Philadelphia, the detail will be assigned to the of?cers district/unit of assignment if the outside jurisdiction is unable to provide coverage. c. If any con?ict arises as a result of detail assignments, the First Deputy will have the ?nal decision on how to provide the manpower for the security detail. 3. Police Radio will enter the of?cer?s home address into CAD and give Priority 1 status to calls for help coming from that location. 4. If the of?cer lives outside the boundaries of Philadelphia, Field Operations will make a request to the appropriate jurisdiction to enter the of?cer?s home address into their CAD and respond accordingly to calls for help coming from that location. D. Commanding Of?cer. Criminal Intelligence in conjunction with the DVIC Social Media Investigative Support Team (SMIST) will contact the involved member and discuss ways they can review their social media footprint to minimize the amount of personal information posted on-iine and discuss the steps they can take. if needed. to protect themselves against identity theft. E. A c0py of the Of?cer Involved Shooting (OIS) Safeguard Protocol memorandum is attached at the end of this directive. DIRECTIVE 10.1 - 20 10. ANNUAL REVIEW A. Research and Planning in conjunction with Internal Affairs and the Training and Education Services Bureau shall review this directive annually and reconunend any updates and changes through the appropriate chain of command to the Police Commissioner. RELATED PROCEDURES: Directive 4.1, Directive 10.2, Directive 3.14, Directive 12.14, Directive 3.20, Directive 4.16, Directive 10.6, Directive 10.7, Directive 10.9. Directive 10.10, Directive 4.10, Directive 6.15 Directive 10.3, Directive 10.4, Responsibilities at Crime Scenes Use of Force/Less Lethal Force Hospital Cases Injuries on Duty and Other Service Connected Animal Control Media Relations and the Release of Information to the Public Firearms Policy: On or Off Duty Critical ResponselCritical Incident Negotiations Severely Mentally Disabled Persons Off Duty Police Actions Foot Pursuits Employee Assistance Program Use of the Electronic Control Weapon (ECW) Use of Force Review Board (UFRB) BY COMMAND OF THE POLICE COMMISSIONER PLEAC Conforms to the standards according to the Law Enforcement Accreditation Commission DIRECTIVE 10.1 - 21 FIREARM DISQHARGE CHECKLIST . Did you discharge your ?reann? a) If so, in what direction? b) Approximately. where were you located when you fired? c) How many shots do you think you ?red? (1) Approximately, where was the suspect at when you ?red? . is anyone injured? a) If so, where are they located? . Are there any outstanding suSpects? a) if so, what is their description? b) What direction and mode of travel? c) How long have they been gone? d) What crime(s) have they committed? e) What type of weapon do they have? . Is it possible the suspect fired rounds at you? a) If so, what direction were the rounds ?red from? b) How many shots do you think the susth ?red? c) Approximately, where was the suspect located when they ?red? . Do you know if any other of?cer(s) discharged their ?rearms? a) If so, who are they? b) Approximately, where was the of?cer(s) located when they ?red? . Are there any weapons or evidence that needs to be secured/protected? a) If so, where are they located? . Are you aware of any witnesses? a) If so, where are they located? . Were you wearing a body?wom camera? a) If so. was the camera on during the incident? DIRECTIVE 10.1 - 22 POLICE momma . worm DATE: TO FROM Police Commissioner 1. involved'm?ie shooting Thiswillme within?homofano?cer involved o?ng'l?hemfannotionwillindnde o?ca?smymofservice, mammal 2. WWEWMDVICWM withinmm 3. CommissiomFiddOpan?ummhis whow?mievr?n?nutam 4. ?Us: 5- (Damn 6. homesd?mcsimii?ieirCAD 7. SodnlModinlmm?gn?veSqiport tin-line. Inaddi?on. SMISprill educatetheiandOMs) ?rmdmagninstidan?ty?ze? ifneodal Connoissbm Climbs H. Romy Philadelphia Police Department DIRECTIVE 10.1 - 23 . PHILADELPHIA POLICE DEPARTMENT DIRECTIVE 10.2 Issued Date: 09-18-15 I Effective Date: 09-18-15 I Updated Date: SUBJECT: USE OF MODERATEJLIMITED FORCE PLEAC 1.3.1, 1.3.4, 1.3.5, 1.3.7, 1.3.8, 1.5.5, 3.121(5) SECTION I0 10 1] INDEX 1m PAGE NUMBER Purpose 1 Po?cy 1 De?nitions 2 Use of Force 3 ?Use of Force Decision Chart? 4 Utilizing Force 7 Use of 0C Pepper Spray 9 Use of the Police Baton/Asp '12 Use of Other Less Lethai Force 14 Use of Force Noti?cation Procedure 15 Use of Force Incidents Resulting in Death 16 Or Serious Bodily Injury Distribution of Use of Force Form 18 Assault on Police Investigation Procedures 18 PLRB- 15 REV 3-88 COMMONWEALTH OF Labor Relations Board Fraternal Order of Folice Lodge No. 5 130 NO WRITE IN THIS SPACE COMPLAINANT Case NGPF, I (7 v. Date Filed JUL {1 2 2015 City of Philadeiphia ENDE HARGE ABOR TO THE HONORABLE, THE MEMBERS OF THE LABOR RELATIONS BOARD: The Complainant, Fratemal Order of Police Lodge No. 5 (name ot'employee, labor organization or employer) by and through Stephen J. Holroyd. Esquire. leaning Sigmond Penn Mutual Towers. 16 Floor, Sit} Walnut Street, i?hiladelphia, PA 19106-3583 (2 5) 35l~0670 (address, zip code. telephone number of person ?ling change) HEREBY CHARGES that Respondent, City of Philadelphia, clo Somme Reilly. Esquire (employer, labor organization or employee aliqed to have committed unfair labor practicu of One Parkway, 16" Floor, 2515 Arch Street, Philadelphia, PA 19102 (address, zip code, telephone number) has engaged in unfair labor practices contraty to the provisions of the Labor Relations Act. Section 6. subsection or (3). clause(s) Cross out subsection and clauses inapplighlg pm I to ?ling with the B9351.) If more than one Respondent, plane in block C) and list on separate sheet. [in grievance relating to this issue has been med, place in block. m: is placed in block, please send a copy ofthe grievance and the contract to assist in review of this charge. (over) SPECIFICATION 0F CHARGES Set forth all of the events alleged to constitute the unfair labor practice(s). lnclude Speci?c facts, dates, names, addresses, place ofoccutrence, and other relevant facts. If additional space is needed, please continue on additional sheet(s) SEE ATTACHED WHEREFORE, the Complainant respectfully requests the Labor Relatlons Board to enter the charge upon the Docket of the said Board and to issue and nose to be served upon the Respondent above named a Complaint stating the charge(s) of unfair labor practice(s). 76am orComprn-tanml- Representative COMMONWEALTH OF COUNTY OF PHILADELPHIA On this (a day of personally appeared Ste hen J. 2015 before me, am in and for said County and State, Es uire who being duly sworn according to law, dcposes and says that helshe is the person ?ling the foregoing CHARGE OF UNFAIR LABOR PRACTICES and is aware of the contents thereof and that 7 the matters and facts set forth therein are true and cancel to the best of his or her knowledge, information and belief. ?m Signatu ot? Cofnplainanl' or Re - AND SUBSCRIBED T0 before me the day? and year ?rst aforesaid. has 0? CHARGE AND ALL accompammc EXHIBITS DEL pnocessmo SPECIFICATIONS OF l. Fraternal Order of Police Lodge No. 5 is, pursuant to the provisions of Act 111 and the Labor Relations Act, the exclusive collective bargaining representative for employees employed by the City of Philadelphia (?City?) Police Department. 2. On or about May 28, 2015, the FOP was advised by the City of the desire of the Department of Justice Technical Advisers to meet with the POP regarding recommendations to changes in working conditions at the City Police Department that conflicted with the terms of the current collective bargaining agreement between the parties. 3. The FOP, indicating that its collective bargaining agreement was with the City and not with the DOJT A, and expressing an utter lack of con?dence in the neutrality of the DOJTA, declined to meet with the DOJTA. 4. On or about June 1, 2015, the City issued a number of revised directives, each involving use of force. 5. Speci?cally, Directive 10, Directive 22, Directive 160, and Directive 16! were issued with significant changes concerning use of force and use of force policies. 6. Not coincidentally, these changes re?ected the some changes that the DOJT A was seeking, but indicated were contrary to the collective bargaining agreement between the POP and the City. 7. Nevertheless, the City unilaterally implemented these changes in working conditions without ?rst bargaining with the FOP -. or, indeed, even requesting bargaining with the POP. 8. The FOP has not agreed to these unilateral changes. 9. In addition, on July 1, 2015. the City unilaterally implemented a policy whereby the City would release the names of members who discharge their ?rearm in of?cer involved shootings within 72 hours of the incident. 10. This unilateral change is contrary to decades of past practice between the parties, whereby the privacy rights of officers were valued and protected. In addition, releasing names to the public has a significant impact on an o?icer?s working conditions. 11. The July 1, 2015 change in policy was implemented without negotiating with or securing the approval of the POP. 12. By the above acts, the City has violated the aforesaid provisions of the Act. REV 3-88 COMMONWEALTH OF Labor Relations Board Fraternal Order of Police Lodge No. 5 DO N0 WRITE IN THIS SPACE COMPLAINANT Case No. PF - v. Date Filed JUL 0 8 2015 City of Philadelphia CHARGE OF UNFAIR LABOR PRACTICE TO THE HONORABLE, THE MEMBERS OF THE LABOR RELATIONS BOARD: The Complainant. Fraternal Order of Police Lodge No. 5 (name of employee. labor organization or employer) by and through Stephen J. Holroyd, Esquire, Jennings Sigmond Penn Mutual Towers, l6?1 Floor, SID Walnut Street, Philadelphia, PA 19106-3683 (2 I 5) 35 1-0670 (address, zip code, telephone number of person ?ling charge) HEREBY CHARGES that ReSpondent, City of Philadelphia, do Suzanne Reilly, Esquire (employer, labor organization or employee alleged to have committed unfair labor practia of One Parkway, is? Floor, 1515 Arch Street, Philadelphia, PA 19102 (address, zip code, telephone number) has engaged in unfair labor practices contrary to the provisions of the Labor Relations Act, Section 6. subsection or (2), clause(s) . Cross out subsection and clauses ina licable rior to ?lin with he Board.) If more than one Respondent, place in block [3 and list on separate sheet. If a grievance relating to this issue has been ?led, place in block. If is placed in block, please send a copy of the grievance and the contract to assist in review of this charge. SPECIFICATION OF CHARGES Set forth all of the events alleged to constitute the unfair labor practice(s). Include speci?c facts. dates. names. addresses. place of occurrence, and other relevant facts. If additional space is needed. please continue on additional sheet(s) SEE ATTACH ED WHEREFORE, the Complainant respectfully requests the Labor Relations Board to enter the charge upon the Docket of the said Board and to issue and cause to be served upon the ReSpondent above named a Complaint stating the charge(s) of unfair labor practiee(s). A A 7%nature of pla' am or Representative COMMONWEALTH OF COUNTY OF PHILADELPHIA . 20l5. before me, a Notag Public in and for said County and State. personally appeare St . 0er Es uire. who being duly sworn according to law, deposes and says that helshe is the person ?ling the foregoing CHARGE OF UNFAIR LABOR PRACTICES and is aware of the contents thereof and that the-mattersead facts set forth therein are true and correct to the best of his or her knowledge, information and belief. AND SUBSCRIBED TO before me the day and year ?rst aforesaid. mam Sign/a hire of Com or Represent: FAILURE TO FILE AN ORIGINAL AND 3 COPIES OF THE CHAR AND ALL ACCOMPANYING EXHIBITS MAY PROCESS 10. SPECIFICATIONS OF CHARGES Fraternal Order of Police Lodge No. 5 is, pursuant to the provisions of Act 11] and the Labor Relations Act, the exclusive collective bargaining representative for employees employed by the City of Philadelphia (?City?) Police Department. For at least ?fty years prior to the 2009 Act 111 interest arbitration proceedings. the City required bargaining unit members to reside within the City as a condition of employment. Failure to do so resulted in discharge. During interest arbitration proceedings convened for the purpose of establishing the terms and conditions for a collective bargaining agreement effective July 1, 2009, the POP submitted a proposal seeking to eliminate the requirement that individuals employed in the police department must live in the City. This proposal was vehemently contested by the City during those proceedings. Nevertheless, in an interest arbitration award dated December 18, 2009, a majority of the Act 111 panel eliminated the residency requirement and provided that, effective January 1, 2012, no of?cer with at least 5 years of service would be required to live within the City, but must reside within the Commonwealth of Since the issuance of the award, the City has continued to complain bitterly about the fact that police of?cers are no longer required to live within the City as a condition of employment. In fact, the City continues to attempt to apply residency requirements to certain conditions of employment?such as promotional status?and the FOP has pursued grievances over these attempts to continue to make residency a condition of employment. Prior to July 2, 2015 the City would not public identify of?cers who are involved in on-duty shootings for fear of retribution to the officers and their families. On or about July 2, 2015, pursuant to a unilaterally implemented policy whereby the City would disclose to the public the names of of?cers involved in police shootings that occur in the performance of the of?cer's duties, the City identified two police of?cers?herein referred to as Officer A and Of?cer B?involved in a lawful and permissible use of force several months earlier. Shortly thereafter, the City decided that the release of the names created a danger for the affected of?cers and their families. As a consequence, the City offered to provide police protection to the two of?cers. 11. 12. 13. 14. 15. 16. 17. 18. 19. While the fact that the City felt that the two of?cers needed protection is clearly something the City should have considered before needlessly and recklessly identifying the of?cers to the public, the fact remains that the City did identify the two of?cers, and did offer to provide police protection after the fact. Having caused the of?cers and their families to be placed in danger by virtue of the City?s short-sighted and unilaterally implemented policy, both of?cers accepted the City?s offer of police protection for themselves and their families. In recognition of the danger that the disclosure placed both the of?cer and his family, the City provided, and continues to provide, round the clock police protection at the residence with the City of Of?cer A. However, after having made the offer to provide police protection as a result of the Department?s disclosure of the names of the of?cers, the City then advised Of?cer that it would not provide either him or his family with police protection. The only reason provided for thus needlessly and senselessly endangering the lives and safety of Of?cer and his family is that he had chosen to exercise his contractual right to move outside of the City. In point of fact, numerous options were and are readily available through which to provide police protection'to the of?cer and his family. However, the City, that has thus created the danger to the officer and his family, has refused to utilize any such options and has instead chosen to thus needlessly endanger the officer and his family solely because the of?cer lawfully and properly performed his duties at the risk of his own life. Accordingly, the City is depriving the of?cer with a bene?t being made available to other of?cers based solely on the fact that he lives outside the City, and notwithstanding the fact that, by virtue of the 2009 Act 111 Award, residency is no longer a condition of employment. This failure to fully comply with the 2009 Act 111 Award is a unilateral change in the terms and conditions of employment of police of?cers, and was not bargained with the FOP. In addition, the City?s actions in this case are in retaliation for the OP's actively seekingde then obtaining?the elimination of residency as a condition of employment for police of?cers. By the above acts, the City has violated the aforesaid provisions of the Act. IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY MICHAEL G. LUTZ LODGE NO. 5 OF THE FRATERNAL ORDER OF POLICE, through its Trustee Ad Litem, JOHN Plaintiff AUGUST TERM, NO. v. (Jum?gjhi CITY OF PHILADELPHIA Defendant DECLARATION OF JOHN 1. My name is John McGrody and since October, 2007, I have served as the Vice President of the Philadelphia Fraternal Order of Police, Lodge 5 located at 11630 Caroline Rd., Philadelphianon?pro?t corporation organized under the laws of the Commonwealth of The FOP represents for purposes of collective bargaining approximately 6,600 active police of?cers who are employed by the City of Philadelphia 3. My job duties as an FOP Vice-President include coordinating, supervising and monitoring the grievance and arbitration procedure within the FOP. Page 1 of4 4. Fraternal Order of Police Lodge No. 5 is, pursuant to the provisions of Act 111 and the Labor Relations Act, the exclusive collective bargaining representative for employees employed by the City of Philadelphia (?City?) Police Department. 5. On or about May 28, 2015, the FOP was advised by the City of the desire of the Department of Justice Technical Advisers to meet with the FOP regarding recommendations to changes in working conditions at the City Police Department that con?icted with the terms of the current collective bargaining agreement between the parties. 6. The FOP, indicating that its collective bargaining agreement was with the City and not with the DOJTA, and expressing an utter lack of con?dence in the neutrality of the DOJT A, declined to meet with the DOJTA. 7. On or about June 1, 2015, the City issued a number of revised directives, each involving use of force. 8. Speci?cally, Directive 10, Directive 22, Directive 160, and Directive 161 were issued with signi?cant changes concerning use of force and use of force policies. 9. Not coincidentally, these changes re?ected the same changes that the DOJT A was seeking, but indicated were contrary to the collective bargaining agreement between the FOP and the City. 10. Nevertheless, the City unilaterally implemented these changes in working conditions without ?rst bargaining with the FOP - or, indeed, even requesting bargaining with the POP. 1. The FOP has not agreed to these unilateral changes. Page 2 of 4 12. In addition, on July 1, 2015, the City unilaterally implemented a policy whereby the City would release to the public the names of members who discharge their ?rearm in of?cer involved shootings within 72 hours of the incident. (A true and correct copy of Directive 10.1 is attached hereto as Exhibit 1.) 13. This unilateral change is contrary to decades of past practice between the parties, whereby the privacy rights of of?cers were valued and protected. In addition, releasing names to the public has a significant impact on an of?cer?s working conditions, and most importantly, the safety of the of?cer and their family. 14. The July 1, 2015 change in policy was implemented without negotiating with or securing the approval of the FOP. 15. Accordingly, on July 2, 2015, the FOP ?led an amended unfair Labor practice charge against the City with the Labor Relations Board in which it protested the City?s actions. (A true and correct copy of the amended ULP charge is attached hereto as Exhibit 2.) 16. The charge was docketed by the PLRB at PF-C-15-42-E and a Complaint and Notice of Hearing was issued. 17. On July 8, 2015, the FOP ?led an additional ULP charge that addressed similar issues concerning the unilateral implementation of Directive 10.1. (A true and correct copy of the amended ULP charge is attached hereto as Exhibit 3.) 18. The charged was docketed by the PLRB at and a Complaint and Notice of Hearing was issued. Page 3 of 4 19. The two charges were consolidated, and an evidentiary hearing was held in Harrisburg, PA on September 26, 2016. 20. A second, as of yet unscheduled, second day of testimony is required. 21. The matter therefore remains open and the PLRB has yet to determine the legality of the City?s modi?cation and implementation of Directive 10.1 I verify that the facts and statements contained in this Declaration are true and correct to the best of my knowledge. Further, I understand that these statements are made subject to the penalties of 28 U.S.C. 1746 and 18 Pa. C. S. {5 4904, relating to unsworn falsi?cation to authorities ce-President raternal Order of Police, Lodge 5 Date: 2 Page 4 of 4 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY MICHAEL G. LUTZ LODGE NO. 5 OF THE RATERNAL ORDER OF POLICE, through its Trustee Ad Litem, JOHN Plaintiff AUGUST TERM, NO. V. CITY OF PHILADELPHIA gm, Defendant DECLARATION OF POLICE OFFICER RYAN POWNALL . I am 35 years of age and I live in Northeast Philadelphia with my wife and two children, each age three (3). . I have been a Police Officer employed by the City of Philadelphia for approximately ten (10) years. . I am currently assigned to the 15?h District. . On June 8, 2017, I was involved in an on?duty shooting, resulting in the death of an individual named David Jones. . As is the case with all police-related shootings, and consistent with Departmental policy, the matter is under investigation by numerous entities, including Internal Affairs. . Consistent with Departmental practices and policies, I have been placed on restricted duty pending completion of the investigation. . No ?ndings have been made with regard to the appropriateness of my conduct in relation to the shooting. 8. 10. ll. l2. 13. 14. Pursuant to Philadelphia Police Department Directive shortly after the June 8th incident the City released a press statement to the public which contained my name, years of service, assignment and duty status. Since the time of the release of my personal information, I and my family have been the victims of continuous harassment and provocation by members of the general public, and Speci?cally, individuals who claim an af?liation with the Black Lives Matter organization. Such harassment and provocation has included death threats over the phone by unknown persons. I regularly receive similar threats through social media and other on-line Unknown persons have engaged in additional conduct that places the safety of myself and my family in the path of potential harm. Such conduct includes: a. The posting of my address on?line b. The posting of pictures of me on?line c. The posting of the name and pictures of my brother and sister on- line d. Searches of my mother?s personal information through non-public sources e. The posting of a ?yer that is styled in the form of a ?wanted? poster. The ?yer contains my picture under the heading for the MURDER of David Thomas Jones.? The ?yer additionally states: ?Warning! He is considered armed and dangerous. He has killed and will kill again. Help bring him to justice for David Thomas Jones? and ?Wanted: the pig who murdered David Jones.? 0n the evening of August at approximately 6:30 approximately a dozen protesters stormed through my neighborhood straight to my home. I was home with my wife and children at the time. For approximately two hours, my family was trapped inside our home while the protesters blocked traf?c in front of my home. 15. A person who appeared to be the leader of the group and who identi?ed himself as being part of BLM shouted Obscenities and racist comments through a bullhom in the direction of my home and the homes of my neighbors. 16. Many of the individuals carried BLM signs. 17. More than once, the person with the bullhorn shouted: ?We want justice or else we are going to keep going into your f??**ing neighborhood.? 18. The group yelled loudly and chanted throughout the event, using profanities throughout. the police? was a constant re?'ain. 19. At one point, there were what appeared to be hundreds of people on the street, including protesters, police of?cers and members of the community. 20. The scene was chaotic and dangerous. 21. My wife and I genuinely feared for the safety of our children. 22. Indeed, since the City?s release of my name to the public I have had grave concerns for the safety of myself and my family. 23. My wife has been functioning in a state of constant alarm, panic and anxiety. 24. I have what I believe to be a legitimate concern that the continuous threats I receive will be acted upon. 25. The events of the evening of August 24lh have served to signi?cantly heighten my concerns. DATE: 7 FIRSTJUDICIAL DISTRICT OF TRIAL DIVISION CIVIL OFFICE OF JUDICIAL RECORDS Room 284 City Hall Philadelphia, PA 19107 215-686?6652 215?567?7380 (Fax) 'Eric Peder . Steven]. Wulko, Deputy Director Deputy Coun Administrator . Anjeza Keirstead, Deputy Director Director, Of?ce oqudicial Records Date I 7; Client?s Narne A?fi AN Case/Invoice Number 0d?? 0 5 4a? ofSubpoenas/Cert./Additional Pages Type of Filing [/14 {0 ?lo/J Fee 97: 68 Scanning Fee 8? Tetal Clerk?s Initials