Council drills down further on proposed police use-of-force legislation

Council drills down further on proposed police use-of-force legislation

Bill includes policy on no-knock warrants, chokeholds, other actions

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Montgomery County Council members discussed details of the police use-of-force legislation on Thursday, including no-knock search warrants and chokeholds.

Photo from Montgomery County Police

Montgomery County officials are taking a magnifying glass to use-of-force procedures after increasing national attention on police brutality.

Police use-of-force legislation is under review by the County Council and was discussed during a Public Safety Committee meeting on Thursday.

Committee members on Thursday reviewed some possible changes to a bill pending before the council. Committee members can vote on recommendations for the full council to consider when legislation is up for a vote.

Council President Sidney Katz and members Tom Hucker and Gabe Albornoz are on the committee. Council Members Will Jawando and Craig Rice, as well as Montgomery County Police Chief Marcus Jones, attended Thursday’s meeting.

The council discussed 12 amendments or issues related to the bill.

Those included:
● High-risk, no-knock warrants
● Neck and carotid restraints
● Use of force involving vehicles
● Striking restrained individuals
● Use of force against fleeing individuals
● Treatment of certain populations, including individuals with disabilities
● Effects on criminal and civil liability
● Less lethal force
● Exemption from collective bargaining

Council members aimed most of their attention on no-knock warrants, which allow police officers to enter a house without knocking or acknowledging that they are police officers before entering.

More attention has been on no-knock warrants with the death of Breonna Taylor, who was shot to death by Louisville Metro Police officers in her home on March 13. The officers were conducting a no-knock search warrant.

In Montgomery County, only SWAT team members perform no-knock warrants, which have to be approved by a supervisor and executive officer. If one is approved, it then has to go through a judge, who can decide whether to allow it.

The police department’s current policy is that no-knock warrants can only be sought when an individual has a history of violence or when a person has weapons but is not legally allowed to have them, according to Jones.

In Montgomery County, there are usually around 600 warrants executed every year. Most are not no-knock warrants, he said.

In 2019, the police department’s SWAT Team executed 140 search warrants. Of those, 108 were no-knock warrants.

Jones defended the department’s history and said only three no-knock warrants have involved shootings over 40 years.

“That speaks volumes to the tactics and training that these officers go through consistently and daily,” he said.

A recent example happened in March, when an officer shot and killed Duncan Socrates Lemp, 21, during a search of his Potomac home based on a no-knock warrant.

Police said at the time that Lemp illegally owned three rifles and two shotguns.

In a press release about the shooting, police wrote: “During the warrant service, the suspect confronted the officers and was fatally shot by an officer assigned to the Tactical Unit.”

Lemp’s family has challenged how Montgomery County police handled the situation.

His family alleged that officers shot at Lemp’s window, and that their use of force that night was unjustified. In a statement, Lemp’s family said he was shot “multiple times” by officers and killed.

The family said officers “initiated gunfire and flash bangs” through Lemp’s bedroom window, but never gave Lemp orders.

Rice said on Thursday that he’d like to see evidence or data that a regular search warrant wouldn’t achieve the same outcome as a no-knock warrant.

“Where’s the evidence that shows that’s more dangerous?” he said.

Jones said there is evidence that shows there’s limited force when all warrants are being executed.

But Jawando felt there still needed to be a clear restriction.

“We need to restrict this into the most severe cases and raise the threshold,” he said. “I think the risk is high for everybody.”

Katz, who chairs the Public Safety Committee, said he was concerned that if the council didn’t allow no-knock search warrants at all, situations such as a hostage or kidnapping standoff could end badly.

“We need to allow some flexibility, so that if horrible circumstances take place, that we can have something so law enforcement officers can take care of that situation,” he said.

Albornoz said the process of making decisions to use no-knock search warrants should be made public for cases and the council should revisit them each year.

The three committee members unanimously voted to approve a recommendation for no-knock search warrants to only be allowed under “exigent circumstances,” meaning an emergency, such as when there is danger. Under the proposed change, county police could not seek a no-knock search warrant from a judge.

There would be no approval process for the no-knock warrants since they would only be allowed in an emergency.

Exigent circumstances would not include destruction of evidence.

The committee also unanimously approved a recommendation that neck and carotid restraints, or chokeholds, be banned in all circumstances.

Jones said the department already has a policy that considers chokeholds deadly force.

“We stopped utilizing that as a tool and training it,” he said. The policy was put into place in December 2002.

The only time an officer can use it is in “extreme circumstances,” when an officer feels his or her life is in danger and doesn’t have another option, Jones said.

Hucker said he was concerned about the exception.

“I think, as we’ve seen in many other areas of law, it’s very hard to prove the state of mind of someone when they’re committing an act unless they publicly say that is their intent,” he said.

Hucker called the exception a “loophole” and said he preferred an absolute ban.

“I can’t believe a police officer is going to do something less than what they need to do and protect themselves and save their life, if they truly believe they are in a life-threatening situation,” he said. “The reason to take out the loophole is simply to avoid the use of the loophole by an officer who didn’t sincerely believe their life was in danger.”

Katz said that if officers are not being taught how to properly do chokeholds, they should not be able to do it.

Haley Roberts, an associate county attorney, noted that the law could have “drastic implications” with potential liability if an officer used a chokehold and it was banned. Rice said he believed a court could determine whether an officer used it with justification in fighting for his or her life.

Other recommendations the committee made included prohibiting police from shooting at a moving vehicle unless it’s being used as a weapon and if the circumstances would authorize the use of deadly force.

The committee also recommended that officers not be able to strike a restrained person if he or she is under control, is not resisting arrest and no longer poses a threat to the officer or others in the area. Jawando voiced his disagreement with the provision since he said it was based on subjective judgment.

The only disagreement within the committee concerned exempting the use-of-force policy from collective bargaining with the Fraternal Order of Police, the police union.

Under an amendment to the bill, the County Code would add the policy to the list of exemptions from bargaining.

Jones said County Executive Marc Elrich was opposed to the amendment.

“He believes [amending the code] is unnecessary and could have the unintended consequences of putting FOP bargaining law out of alignment with MCGEO and IAFF law,” Jones said, referring to other unions that do not represent police officers. “He just wanted to note that this was not the intent of the bill clearly and would be beyond the scope.”

Hucker said he agreed with Elrich.

“I think that would lead to some confusion and some unintended consequences,” Hucker said.

But Jawando said removing it would change the overall intent of the bill.

“If we don’t add this amendment, some of the articles in this use-of-force policy could be collectively bargained by the union, thus removing the authority of the chief to propagate that policy,” he said.

Lee Holland, vice president of the FOP, said the union wouldn’t bargain over the policy. He said he felt it was unnecessary to change the code.

The recommendation to amend the code passed 2-1 in the committee, with Hucker voting against the proposal.

The full council is expected to discuss the policy at its meeting on Tuesday.

Briana Adhikusuma can be reached at briana.adhikusuma@bethesdamagazine.com.

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