This companys permissive policies are behind high profile police shootings of Black men in the US
(USA Today) - The Texas-based company, Lexipol LLC, markets its policies as a way to protect local governments from frivolous lawsuits. That message has attracted clients all over the country, making Lexipol an influential player in the world of law enforcement.
The North Carolina sheriff's deputies who fatally shot Andrew Brown Jr. in April could have avoided taking his life, policing experts say, if they had followed best practices and not opened fire when he fled in a car as they tried to serve warrants.
But the fatal shooting may well have complied with the Pasquotank County Sheriff's Office use-of-force policy, which allows deputies to shoot at a moving vehicle even when best practices say they shouldn't.
That's by design. But the policy wasn't designed by the Sheriff's Office, the county commission or any other government authority.
The Sheriff's Office obtained its use-of-force policy from a company that sells ready-to-use manuals that prioritize law enforcement officers' discretion — policies that hold them to a minimum standard that's defensible in court rather than best practices in policing.
The Texas-based company, Lexipol LLC, markets its policies as a way to protect local governments from frivolous lawsuits. That message has attracted clients all over the country, making Lexipol an influential player in the world of law enforcement.
Lexipol says its policies set appropriate standards for officers while taking into account the challenges of making split-second decisions. Policing experts and civil rights advocates say the company’s guidelines — and the willingness of some agencies to embrace them with little or no alteration — has contributed to a heavy-handed approach that has disproportionately cost the lives of Black men.
They cite Brown’s fatal encounter with police as an example.
Brown, 42, was shot April 21 in Elizabeth City, North Carolina, as he tried to drive away from deputies serving him with drug-related warrants. His car bumper passed close to a deputy, who put his hand on the car to jump out of the way. That's when the first shot rang out.
Within seconds, deputies fired 13 more shots as Brown speeded across a grassy lot. An autopsy commissioned by the family determined Brown was hit five times, including a fatal shot to the back of his head.
The car stopped in a neighboring yard after striking a tree. No weapons were found on Brown or in his vehicle.
The Sheriff's Office policy says deputies should shoot at a moving vehicle only if they "reasonably" believe there's no other way to avoid an "imminent threat" to deputies or the public. It defines "imminent" as "impending," not immediate.
The local district attorney said the shooting was justified. Scott Greenwood, a prominent constitutional law attorney, said that shows the shortcomings of the department's policy.
"It's a weak policy, it’s a permissive policy; it doesn’t impose any types of restrictions on officers' use of deadly force beyond the bare, constitutional minimum," Greenwood said.
"As a result, it’s quite easy to justify the use of deadly force in circumstances that most practitioners, most police leaders, would tell you would not merit a use of deadly force," he said.
Lexipol declined to provide a company representative for an interview and did not respond to written questions submitted at its request.
The company's policies are full of qualifiers and hedges, a trademark of sorts for the private equity-owned company, which says it works with 8,100 public safety agencies and municipalities across at least 35 states. It's the country's largest purveyor of law enforcement policies.
Founded in 2003 and based in the Dallas suburb of Frisco, Lexipol has filled a vacuum from the lack of national policing standards. It caters to small and mid-sized departments that make up the vast majority of the roughly 18,000 law enforcement agencies in the U.S.
The company promises to keep them up to date with evolving standards and case law. Critics say its policies are vague and permissive, and departments are unlikely to customize them for the same reason they turned to Lexipol in the first place: Policymaking is time-consuming and expensive.
Lexipol's website is loaded with arguments against best practices advocated by policing experts, such as mandating de-escalation, banning shooting at moving vehicles, and limiting officers' discretion.
For example, the company says officers can't always de-escalate situations because subjects may show signs of "excited delirium" — a condition in which someone displays aggression and apparent immunity to pain, often tied to drug use and mental illness.
Those arguments are contradicted by experts. The American Psychiatric Association says excited delirium is a vague condition disproportionately used to justify harming Black men in police custody.
Ingrid Eagly, a professor at UCLA School of Law who co-wrote a paper on Lexipol for the Texas Law Review, concluded the company structures its policies in a way that's "designed to give maximum discretion to law enforcement officers."
Clients have included police departments in Brooklyn Center, Minnesota, where Daunte Wright was killed this year; Sacramento, California, where Stephon Clark was killed in 2018; and St. Anthony, Minnesota, where Philando Castile was killed in 2016. All were Black men.
Lexipol charges public safety agencies annual fees on a sliding scale depending on their size. Often the purchase is subsidized by municipal risk pools.
The company has become a one-stop shop for law enforcement agencies, providing online training, grant assistance, legal analyses, webinars and media through sites like Police One, whose articles are cited by expert witnesses.
Bruce Praet, one of the founders, is a defense attorney who frequently represents officers and departments that have been sued, many of which have Lexipol policies. Co-founder Gordon Graham is an attorney and portrays himself as a risk-management guru. Both are former California cops.
The company regularly partners with the Force Science Institute, whose founder, psychologist Bill Lewinski, is viewed by many policing experts as biased toward police. An editor for the American Psychology Journal called his work "pseudoscience." The Justice Department said it's unreliable.
An independent law enforcement expert who reviewed Brown's death for the Pasquotank County sheriff cited Lexipol and Force Science Institute language, concluding that the use of deadly force "was in direct response to the imminent threat of serious physical harm to persons caused by Mr. Brown’s wanton and reckless operation of his motor vehicle.”
Pasquotank County Sheriff Tommy Wooten did not respond to requests for comment.
"There's a growing public demand for police departments to use less force and to use less pain compliance," Greenwood said. "A use-of-force policy that you get from a vendor that allows you to go ... right up to the absolute limit of what you can get away with constitutionally is completely inconsistent with the growing public sentiment."
‘Nothing n police work is black and whitIn 2016, the influential Washington, D.C.-based Police Executive Research Forum urged law enforcement agencies to raise their use-of-force standards above the constitutional minimum.
The litmus test established by case law is that proper use of force is based on whether a reasonable officer would have done the same thing in the same circumstance, with the same knowledge.
The group's stricter guidance was fought by the International Association of Chiefs of Police and the Fraternal Order of Police, which represents 356,000 law enforcement officers across the country.
Lexipol was on their side. In a series of articles published on its site, the company criticized the Police Executive Research Forum's report, saying its guidelines sacrificed officer safety and overemphasized the "sanctity of life."
A year later, law enforcement groups put out a "National Consensus Policy on Use of Force" recommending, among other things, that agencies mandate de-escalation tactics and avoid shooting at moving vehicles.
Again, Lexipol pushed back. Calling de-escalation "the latest buzzword," Praet wrote that "agencies must exercise extreme caution" when mandating what officers should do.
In a webinar after the 2019 passage of a California law mandating a higher standard for deadly force, Praet said, "One of our secret sauces, so to speak, is that rarely, if ever, will you see the use of the word 'shall' in our policies because nothing in police work is black and white."
Praet encourages liberal use of the word "reasonably" in policies – as in "reasonably appears necessary" or "reasonably believes." But that makes for murky guidance.
"If there’s any kind of room for extenuating circumstances, officers interpret that as, well, this could be an extenuating circumstance," said Chuck Wexler, executive director of the Police Executive Research Forum. "You need to be clear and unambiguous. What these other policies do is allow some kind of wiggle room."
Lexipol staff often use edge cases to make their points. At a May conference, program manager Mike Ranalli, retired chief of the Glenville, New York, police department, discussed shooting at a moving vehicle. He showed a video of officers on foot trying to stop a car in the snow. One of the officers falls and slides in front of the fleeing vehicle. Ranalli said the situation showed why officers may need to fire at a moving vehicle.
That's not a typical situation, Wexler said. Most cases in which officers shoot at a moving car involve those who place themselves in danger, such as by moving in front of a fleeing vehicle, he said.
The New York Police Department has banned shooting at moving vehicles for nearly 50 years –– as long as the threat is solely from the vehicle. That move led to an immediate, sharp reduction in uses of lethal force, Wexler said. Other major police departments have followed suit.