Category Archives: Open Records

What is Excessive Force in Arizona?

Police practices have come under national scrutiny.  What is excessive force by law enforcement agencies and what is not?  While the nation is still coming to terms with the shooting by a police officer in Ferguson, Missouri, this is not an isolated problem. Phoenix and Arizona have faced their own questions about what amounts to excessive force during a mental health call and when ASU Assistant Professor Ersula Ore P.h.d. was videoed being slammed into a police car resulting from questioning about jaywalking.

Judging the use of force is a difficult undertaking, especially from the outside.  It is important judgment to make sure there are not abuses in the process.  Because of the power that police have, cases of alleged excessive force make the news.  But rarely does the discussion involve what excessive force is legally, especially from the police’s standpoint.

Police manuals (also referred to as: directives, policies, orders, etc) can be considered an internal standards of care.  Using them can help determine if police officers act in accordance with the law.  See Miranda v. Arizona, 384 U.S. 436, 448-51 (1966) (where the court expressly used and quoted police manuals to determine the standard practice for custodial interrogations at that time).

This blog post intends to examine what the guidelines are for Arizona law enforcement agencies use of force.  Through examining the Arizona Revised Statutes and police department procedures and manuals for the three largest cities in Arizona (Phoenix, Mesa and Tucson), I hope to piece together a general standard for when police are allowed to use force.

Continue reading What is Excessive Force in Arizona?

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The First Amendment’s to Right to Know

The argument that the First Amendment includes a right to know is gaining traction in Arizona and the Ninth Circuit Court of Appeals.

In the fall of 2013 was the first time I heard this argument made.  The state of Arizona as well as other death penalty states have had trouble for a couple of years now procuring drugs used in the administration of the death penalty.  Some companies object on moral grounds that their drugs are used in executions.  The companies who do not object can be subject to public protests and scrutiny that probably is not favorable to their business.  It is no surprise that states including Arizona have become very tight-lipped about their execution procedures.

The defense attorneys were worried at that point the state of Arizona was planning to used expired drugs to carry-out the execution.  Basically their argument was two steps: 1. There was a First Amendment right to know if the drugs were indeed expired or not; and 2. They need to know was necessary so they could file a an Eighth Amendment claim against cruel and unusual punishment if Arizona planned on using expired drugs.   However, the Eighth Amendment cruel and unusual punishment claim hung on whether the public had a right to know Arizona’s death penalty procedures.

I think this argument is going to be used more as state executions are not going smoothly.  CNN says “Botched Executions Can’t Be the New Norm.” The Huffington Post examines “How Arizona, Ohio and Oklahoma Executions Went Awry.”

In fact, I think the argument that the First Amendment includes a right to know may gain traction outside of death penalty realms and could be applicable to open record requests of all types.

The Argument as Used in Woods v. Ryan

After Arizona moved for a warrant of execution requests the defense “sent the first of four letters inquiring about the method the Department would use to execute Wood.” Wood v. Ryan, 14-16310, at *5 (9th Cir. July 19, 2014).  The questions were procedural in nature: which drugs would be used, how much would be administered, the credentials of who would administer the drugs, and the name of the manufacturer. Id.

The Arizona Department of Corrections (ADC) did not directly respond to the defense attorneys’  questions, but offered vague explanations.  The drugs would be obtained domestically and Food and Drug Administration (FDA) approved, although it would not go into further detail based on an Arizona privacy law Ariz. Rev. Stat. § 13-757.

The defense attorneys again requested manufacturer information, expiration dates of the drugs, and for official copies describing Ohio’s new execution protocol.

ADC responded to the request with documents do display the expiration dates of the Midazolam and Hydromorphone.  The drugs are good through September 2015.  However the Department of Corrections redacted the manufacture’s name.  The manufacture’s name may not seem like a big deal, but the Arizona Department of Corrections was previously caught by a federal court in 2012 for illegally importing drugs, with the (FDA’s) approval, to bypass regulations and import unapproved drugs to carry out executions.  After being mislead by the Arizona Department of Corrections before, the defense attorneys were trying to make sure the proper procedure was used.

Following this correspondence, Wood still seeks: (1) the source(s), manufacturer(s), National Drug Codes (“NDCs”), and lot numbers of the drugs the Department intends to use in his execution; (2) non-personally identifying information detailing the qualifications of the personnel the Department will use in his execution; and (3) information and documents explaining how the Department developed its current lethal-injection drug protocol.

Wood v. Ryan, 14-16310, at *7 (9th Cir. July 19, 2014).

The defense claimed the state of Arizona is violating the following protections:

1. First Amendment right to petition the government for redress and grievances; and

2. First Amendment right to be informed about the manner in which the manner Arizona implements the death penalty.

The basis of the First Amendment is to be able to criticize the government. “Underlying this right is the common understanding that a major purpose of that Amendment was to protect free discussion of governmental affairs.” Wood v. Ryan, 14-16310, at *10-11 (9th Cir. July 19, 2014) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982)) (internal citations omitted).  The First Amendment protects speech from governmental intrusion, so it only makes sense is one of the main purposes is to protect citizens from criticizing it.  “This protection ensures that the individual citizen can effectively participate in and contribute to our republican system of government.” Id.

Seeking access to government documents and procedures invokes a First Amendment test that looks to “‘complementary considerations'”  which inform the analysis: “(1) whether the place and process have historically been open to the press and general public[ ] and (2) whether public access plays a significant positive role in the functioning of the particular process in question.” Wood v. Ryan, 14-16310, at *10-11 (9th Cir. July 19, 2014) (quoting Cal. First Amendment Coal. v. Woodford, 299 F.3d 868,   875 (9th Cir 2002) also quoting Press Enterprise II v. Superior Court, 478 U.S. 1, 8-9 (1986))).

The ruling in Wood would be vacated a few days later reversing the preliminary injunction granted by the Ninth Circuit Court of Appeals.  However, the First Amendment analysis can stand independently of the preliminary injunction and potentially be used in future applications.

Future Applications

I find this to be a fascinating First Amendment argument that is fairly unique.  Before I attended that court hearing last summer I never really thought of the First Amendment guaranteeing a right to know. It is even more encouraging that the argument is starting to become accepted in the Ninth Circuit.  Even though the Court is discussing execution procedures there is nothing to limit this analysis to other governmental functions.  The “complimentary considerations” test could apply to a wide variety of situations where individuals seek information about governmental information / procedures.

I would like to see how this could supplement a Freedom of Information Act / state Open Records request to give it more teeth on First Amendment grounds and not just relying on federal or state law.

Phoenix and Tucson Police Directives

The Tucson provides their directives online on governmental websites (a link is at the bottom of the post).  It appears there is some type of trend for the most populous cities in the United States to provide their directives online, either voluntarily or through a court order.

I think it is great police are posting their directives online.  It is a win-win for all.  Some might not think allowing anyone with an internet connection to see the inner-workings of the largest police stations in the state and nation would be a good thing, but let me explain first.

When voluntarily provided the police are able to set the terms on what and how it is distributed.  For example, in the Phoenix Police Directives, Section-9, which describes tactical plans is omitted from public view (for a while the Phoenix Police directives were available on the Phoenix Police website, which does not appear to be the case anymore).  When police voluntarily share information with the public they are the arbiters of what is included, like when the Phoenix Police decided their tactical plans should remain private.  I think that should be applauded.  If the public is able to reference police procedures, it can build trust within the community.

For example, the Tucson Police General Orders, subsection 2200 Constitutional Issues, indicates the do not pay for informants — good to know.  If someone ever claiming to be a police officer offers me money for information, I will know to be suspect of the situation.  Knowing Tucson’s police current policy and being able to reference it quickly via the internet instills trust and confidence that I have in them.

Phoenix Police Department Procedure / Manual

Phoenix Police Department Procedure / Manual

This is an example directive taken from the Tucson police manual.
Tucson Police Department Manual / Procedure.

I have not yet have had the time to go through and compare the procedures of Phoenix, Tucson, and Mesa on every single point.  What I think would be really interesting is to see what if any differences there are between the different departments.  My guess is that there may not be too much of a difference because there are companies that provide boilerplate for police departments.

One thing I did look for is how the police treat citizens who they know suffer from mental health.  The Phoenix Police have several policies that deal with mental illness — some of which go above and beyond what other major cities apparently require.  I will go into detail further at a later date.

Access the directives here:

Phoenix Police directives (this is a direct link and the file is more than 1,200 pages in length.  Please be advised it is a large file).  Note: It appears that the Phoenix Police Department at least has temporarily removed their directives from their website.  The copy provided below is what I previously downloaded while it was publicly available on the internet.

Tucson Police directives

See my earlier post about the city of Mesa Police directives.

***It is important to note police directives may be updated at any time.  Thus, there may be new directives or revised directives that are not included.

Mesa, Arizona Police Department Directives

Through an Open Records Request, the Mesa Police Department shared with me their directives.

Mesa Police Directives Theft Investigations
Mesa, Arizona Police Directives Theft Investigations

Police directives come by several interchangeable names including procedures and manuals. Basically are two types of directives for police: written and unwritten.  Written directives are crafted for scenarios that are foreseeable that police may encounter.  Oral directives are left for times where the scenarios are unforeseeable.  It can be argued that the written directives set a self-imposed standard of care.  By looking at the directives, a person will have one sign post in which to to help make a determination if which the police acted in accordance with their own standards.

Here are the Mesa Police directives (it is a large file almost 1,300 pages in length, so it is probably best to download it to a place where you can read it).

*** It is important to note police directives may be updated at any time.  Thus, there may be new directives or revised directives that are not included.