Correspondence on Firearm Discharge Policy

    I ■, ' : ■, ■

P O L I C E  A D M I M S T K A l  ION' B U I L D I N G  

Police Dcpnrlmcnt

December 29, 1971

f^V T  r " "  C"'s -A ' • Dv ,
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^155-7TH STREET • O A K L A N D ,  C A L I E O R N I A  9-:607

Mr. Ronald D. Krelstein, Legal Advisor
Memphis Police Department
128 Adams Avenue
Memphis, Tennessee 38103
Dear Mr. Krelstein:
I regret the delay in replying to your inquiry and I hope the 
material I am supplying V'/ill be of benefit to you*
Our policy on the use of firearms has recently undeigone some 
j*gvision. Generally, firearms may be discharged in self
defense 
auto thieves 
outlines

and in tile appx*eliens~ion of felons, except burglars, 
nnd ~jnven3.]-CS. The encilosed General Order K-3 

our pô licy and describes our Board of Review ofnot answer all your 
write.discharge of firearms. If this does 

questions, please do not hesitate to
Oakland Municipal Code Chapter 5-11 describes in detail oui 
policies as regards private watchmen. Probably no further 
information should be needed, but let us know if you have 
additional questions.
We also have been confronted with the question of disclosure 
of police information to private citizens. Our response to 
that question relics on §§ 6250, 6256 and 6258 of oui* Govern­
ment Code, and § 6319 of the Labor Codej also, by analogy,
§ 11105 of the Penal Code. Our policy has not been written, 
but it exists as follows: Arrest records are released only
to criminal justice agencies, such as district attoiney s 
offices, the courts or probation departments, and other police 
departments, and, finally, as directed by subpoena. Copies 
of reports of vehicle thefts and burglaries are made available 
to complainants and insurance companies, but they are xeroxed 

such a way tha.t no information about the suspect or the 
officerds comments a.re I’eproduced. The only infoimation re­
turned to the person requesting the copy is the infoimation 
given by the complainant: his name, description of the loss,
etc. No other information is made available to the public.



Mr. Ronald D. Krelstciii -2 - December 29, 1971

The matter of juvenile records, however, remains somewhat 
confiised. The recent case of T . N . G . v. Superior Court, 4̂  
Cal. 3d 7G7 (May G, 1971) has presented a new interpretation 
of Welfare & Institutions Code 6/6, 781 and 827 (related 
to disclosure of juvenile records), (1) to "permit the juve­
nile, who has been temporarily detained by the authorities 
and subsequently released v.'ithout further proceedings, not 
only to deny that he has been arrested, but, also, to deny 
that he has been detained or otherwise subjected to juvenile 
court proceedings," and (2) to "establish the Juvenile Court 
as the sole arbiter of when and in what circumstancejjuvenile 
records may be released to third pai'ties including, state 
agencies." The court is now preparing an order, v/hich we 
will forward to you when it is completed.
We are now considering tlie circumstances v/herein it might 
be appropriate to release criminal records to members of the 
press.
I hope that v/e have been of assistance to you and look for­
ward to receiving a copy of your finished work.
Sincerely yours.
C. R. Gain 
Chief of Police

Linda A. Moody f?  
Legal Advisor ''

LAM: ps 
Enclosure



OFFICE OF CHIEF OF POLICE
Oakland Police Department

SPECIAL ORDER NO. 1072

DATE: 9 Jul 68

■ TO; All Personnel 
SUBJECT: DISCHARGE OF FIREARMS

Departmental General Order K-3 (DISCHARGE OF 
FIREAPJIS) is being reviewed. Until such time 
as the review is completed, members shall not 
discharge firearms for the purpose of effect­
ing the capture of, or preventing the escape 
of, a person whom the member has reasonable 
cause to believe has committed a burglary, 
automobile theft, or any felony violation of 
the California Vehicle Code, and the member 
has no reasonable cause to believe the person 
has committed any other felony.
All of the other provisions of Departmental 
General Order K-3 remain in effect.

By order of



OFFICE OF CHIEF OF POLICE
Oakland Police Dcparti.icnt

I-IEMOIi'lNDmi

TO; All Personnel DATE: 29 Jun 67
SUBJECT; Revision of General Order 60-54, DISCHARGE 

OF FIRE>\PuMS (K-3, 1 Sep 63)

The subject order, first issued 3 Dec 58, has been 
extensively revised to provide additional regulations 
regarding the discharge of firearms, to more precisely 
delineate the function of the Board of Review, and 
to establish procedures regarding the disposition of 
Board of Review findings and reports.
Command officers shall reviev/ the contents of this 
order with all their subordinate personnel.
All personnel shall place the revised order in their 
General Order Manuals. No indexing changes are necessary.

Preston 
riEF OF POLICE



OAi:LAXi)  rO L IC I ::  D - ’>\!nAii ;NT 

Index as;
Discin\rr;e ox Fircai'nis 
Firoariiis, Dischax’gc of 
Weapons, Discharge of

U-. j hi.". .

Date first issued 
Revised

Dll 11 i//

h Dec oh 
1 Sep r,;;

d is char ge o f firearms
The purpose of this order is to state regulations, reportinr-- n-ofP'i'i "f-- 
and investigative procedures governing the discharge of fireirV Departmental members.
I. POLICY

A.

B.

The policy of tnis Department is that members shall exhii-c:T 
every other means before resorting to the use of firearms
Policy and regulations governing the discharge of firearm^; are needed xor the following reasons;
1.

2 .

To inform members of when they are authorized to 
use firearms in the performance of a police duty.
To preclude the unnecessary discharge of firearms.

3. To protect the lives and property of the public as well as members of the Department.
■II. REGULATIOXS

Firearms may be discharged in the performance of a police 
duty only under the following circumstances and subject to the additional restrictions in Part II, B.
1. At an approved range.
2 .

1 ^ .

1^.

5.

When killing seriously wounded or dangerous animals 
where other disposition is impractical.
When necessary in the defense of their own lives when 
all other available means have failed.
When necessary in the defense of another person’s" life 
when all other available means have failed.
When necessary to effect the capture of, or prevent the 
escape of, a person Jenown of believed by the member to 
be an adult whom the member has reasonable cause to 
believe has committed a felony, when all other reasonable 
means have failed. However, firearms shall not be dis­
charged if the member has reason to believe, based upon 
the attendant circumstances, that the discharge'may 
endanger the lives of passersby or other persons not 
involved in the crime from which flight is beino- made or attempted.

Page 1 o f  5 pages



K- Rc v .
29 Jun 67

When used in this order, the word "adult" is defined 
as a person who is 1C years of age or older.

B. ui^rearms shall not be discharged under the following circumstances:

1. As a warning.

3.
4.

At a person know'n or believed by the member to be under the 
age of 18 years unless necessary in the defense of the 
member's life or another person's life when all other 
reasonable means have failed.
a. The member's knowledge or belief of a person's age

may 'oe based upon factors such as his previous knowledge 
of the person, his observations of the person's appear­
ance or upon reliable information imparted to him oy 
other persons.

In any masdemeanor case.
From a moving vehicle or at a moving or fleeing vehicle 
except as follov/s:
a .

b.

When necessai’î in the defense of a member's life or 
another person's life when all other reasonable 
means have failed.

to effect the capture of, or prevent 
a person known or believed by the memoer 
whom the member has reasonable cause 
committed a felony when all other reason- 

However, firearms shall still 
member has reason to believe, 
circumstances, that the 

may endanger the lives of passersby or
not involved in the crime from which

V/hen necessary 
the escape of, 
to be an adult 
to believe has 
able means have failed, 
not be discharged if the 
based upon the attendant 
discharge 
other persons
flight is being made or attempted.

Ill, REPORTING AND INVESTIGATION OF FIREARMS DISCHARGING
A. Whenever a member discharges his firearm either accidentally 

or officially, eircept at an approved range, he shall notify 
an on—duty command officer of his organizational unit as 
soon as possible. If a command officer is not on duty in his 
organizational unit at the time, the member shall notify the 
command officer of the Patrol Division.
1. In addition to notifying a command officer, the member 

shall submit a detailed written report of the circumstances 
through channels to the Chief of Police.

B. A command officer shall personally investigate the report of 
the firearm discharge. He shall submit a detailed written 
report of the results of the investigation through channels to 
the Chief of Police. The report shall also contain his ob­
servations and conclusions regarding the incident.

Page 2 o f  5 pages



-V> I'ov.
29 Jun 67

IV. BOARD OF REVIDA'
A. The Board of Review shall consist of the following members;

1. The Deputy Chief, Bureau of Field Operations, who is 
designated Chairman of the Board.

2. The commanding officer of Training Division.
3. The command and supervisory .officers of the member who discharged his weapon.
4. Two members of the same rank as the member who dischargedhis weapon. ^
5. Any others designated by the Chief of Police.

B. Meetings of the Board
1.

2 .

The Chairman shall call a meeting of the Board of Review 
within a reasonable time after he receives a report of a firearms discharge.
In those cases where the discharge was for a purpose of 
killing wounded or dangerous animals and there was no 
property damage or personal injury, the Chairman may 
approve the report of the investigating command officer 
without holding a meeting of the Board of Review

C. ‘Authority of the Board
1. The Board of Review shall inquire into the circumstances 

attending each discharge of firearms by a Department 
member for the purpose of determining the facts resulting- 
in the discharge. The inquiry shall encompass con­
tributory causes to determine if the officer’s actions 
brought about the need to discharge his weapon.

2, After inquiring into the circumstances attending the 
discharge of firearms and determining the facts, the 
Board shall deliberate the facts presented and arrive at 
a finding -that the discharge was either Justifiable 
Non-Justifiable or Accidental as defined herein.

,/ . a. When the circumstances at the time of the firing 
are justifiable but the firing was the result of 
the officer’s departure from acceptable police 
procedures, the finding shall be that the discharge was Non-Justif iable.

b. A finding of Accidental shall be made only when there 
■ ■ is no element of negligence on the part of the member.

negligence on the part of the member is an element 
resulting in the discharge, the finding shall be Non-Justifiable . .

Page 3 of 5 pages



K~3 Rev.
29 Jun 67

3,

4.

The Board shall recommend to the Chief of Police that 
training programs be undortal:en when circumstances indicate 
such need.
Witliin five days after a Board meeting, the Chairman shall 
submit a Discharge Board of Review Report to the Chief of 
Police. The Report shall contain a summary of the cir- . 
cumstances attending the discharge, a summary of the
Board's deliberations, 
recommendations relati:

the finding of the Board and ..any 
ig to training programs.

V. DISPOSITION OF BOARD OF REI^IEW REPORTS
A. The Chief of Police will review such Discharge Board of Review 

Report for the purpose of approving or disapproving the 
finding and any recommendation made.
1. If the Chief of Police disapproves the finding, further 

action v/ill be taken as he may direct, and the Report 
will then be re-submitted to him for approval.

2. When a Report is approved by the Chief of Police, a copy 
will be forwarded to the member involved, to each of his 
command and supervisory officers, ■fhe Training Division 
commander and to each Deputy Chief. In addition, when a 
discharge has been found by the Board to be Non-justifiable 
and such finding has been approved by the Chief of Police, 
a' copy of 
Office to 
personnel

the Report will be forwarded by the Chief's 
the Personnel Division for filing in the member’s 
jacketi

a. The Office of the Bureau of Field Operations shall 
maintain permanently a file copy of each Board of 
Review Report together with all written material 
relating thereto.

B, When corrective action is indicated by a Discharge Board of 
Review finding, the Chief of Police will determine whether he 
will immediately initiate the action in conformity with the 
finding or refer the Report to the commanding officer of the 
involved member for recommendation of corrective action to be 
taken.
1. Reports which are forwarded to a commanding officer for . 

a recommendation shall be returned through channels to 
the Chief of Police v/ho will approve or disapprove the 
recommendation and make the final decision regarding 
the corrective action to bo taken.

C. One or more of the follov/ing corrective actions may be taken
by the Chief of Police when indicated, subject to the provisions 
of the Charter of the City of Oakland, the rules of the Civil 
Service Board, and when necessary, the approval of the City 
Manager.

Page 4 of  5 pages

O



2 .

3 .

4 .

5 .

6 .

7 .

8 . 
9 .

10.
11.

1.

Kev.
29 Jun G7

Counselling 
Training 
Oral Reprimand 
Written Reprimand
Voluntary surrender of time off in lieu of other'action
Voluntary surrender of accumulated overtime in lieu of other action
Demerits
Suspension
Fine
Demotion
Dismissal from the Service



OFFICE OF CHIEF OF POLICE 
OAKLAND POLICE DEPARTMENT

memoran dum

d a t e : 15 Nov 71TO: All Personnel
• • r^noral Order 60-54, DISCHARGE OFSUBJECT: Revision of GeneralFIREARMS, (K-3, 29 Jun 67)

 ̂ Vnc revised to establish policy regard-The subject order has been p When the discharge

“ :„“ r:f£?Lr^?o"acras chairauaS of the Boara of Beview.
1 oVa-,11 nlace the revision in their DepartmentalAll personnel shal p index changes.General Order Manual. There are

By order of



./

ir'-,.. I J'-h:;!v
/ 'OAK]. A N D  }‘C'!.H:i; 1; T. i-A ;. T M K T  / c . r . c /. i n. c h i r r o k p o l i c e

F-CLlCC / r/MSiiT K AT i.'?i tU*Lr!^'C,  ASS 7 T H5 T . ,  OAKLAKP.  CALI f  A 9A407

October 21, 1970

Royce A. Fincher, Jr., Esq. 
Legal Advisor 
San Jose Police Departir.ent 
San Jose, California 95110

Dear Royce:
The Chief v.’ill not permit rae to release our memorandum on the use 

of deadly force by peace officers, as it is still in need of some revisions.
I am authorized to send you, however, a copy of v;hat v;e consider a "model" 
regulation on the use of deadly force:

Deadly force by peace officers is permissible when it is
reasonably believed to be necessary:

(1) in defense of their own or another's life, or
(2) to effect a felony arrest vdien the use of such 

force creates no substantial risk of injury to 
innocent persons,' and
(a) the felony for v/hich the arrest is made 

involved conduct (i) that included the 
.. . ; use or threatened use of deadly force, _or

(ii) that, by its nature, created a sub­
stantial risk of death or serious bodily 
harm, or

‘ (b) there is a substantial risk that the ‘ -
person to be arrested for a felony v;ill 
cause death or serious bodily harm if 
his apprehension is delayed.

As I mentioned to you yesterday, this model is taken substantially 
from the IIODEL PENAL CODE with the one minor addition that appears in 
Paragraph (2) (a) (ii) . That provision v/as added to include offenses such 
as kidnaping that might not, in a particular case, involve the use or 
threatened use of deadly force, but that by its nature does pose a substantial 
risk of death or serious harm.

VThat all this comes down to, of course, is very simply stated: OFFICERS
SHOULD USE DEADLY FORCE ONLY VdlEN NECESSARY TO DEFEND LIFE OR TO PROTECT 
PERSONS FROM SERIOUS BODILY HARM. It is no secret that Chief Gain considers 
this a model deadly force policy, and thus you may cite his views, if you have 
occasion to. The Oakland General Order, as you know, does not read this



/

vr.y, but its practicril effect is to accor".p.Tish the same results. It is for 
tliat reason tliat v.’c liavc neither taken the effort to revise General Order 
K-3 nor formulated any plans to do so in the foreseeable future.

Vith cordial regard, I am

Very truly yours,

C. R. GAIN 
Chief of Police

Linda A. Moody 
Legal Advisor

LAM;hs

cc: Herbert L^echsler, Esq.
Director, The American Law Institute

\