Police Policy for Sale

This story was co-published with Citylab.

Gabriel Gomez Maciel was driving to church in Spokane, Washington, in 2014, when a minivan T-boned his pickup truck. The minivan driver apologized to Gomez, called police, and told the responding officer that he was at fault. But when the officer arrived, she detained Gomez while she contacted U.S. Border Patrol to ask about his immigration status.

According to a lawsuit filed by the Northwest Immigrant Rights Project and the American Civil Liberties Union of Washington, the officer kept Gomez there for nearly 90 minutes before Border Patrol agents arrived. Gomez had committed no crime and had no criminal history, and the officer didn’t ask him any questions about his immigration status, according to the suit. Still, he was taken into Border Patrol custody and jailed for a month.

City officials said Gomez’s detention was permitted under Spokane Police Department policy, which said, “officers may detain foreign nationals solely for alleged undocumented presence in the U.S. if the U.S. Immigration and Customs Enforcement (ICE) is contacted and can respond to take custody within a reasonable time.” The ACLU argued that the policy violated the Fourth Amendment’s protections from unreasonable search and seizure and the Washington state constitution. Last year, Spokane reached a settlement with Gomez and agreed to change its policies.

But identical language remains in place at law enforcement agencies across the country.

The policy was written by Lexipol, a California-based company that says it provides policies for approximately 3,400 police, fire, and correctional agencies in 35 states. It has grown rapidly over the last 15 years and saturated California, where its clients include more than 90 percent of law enforcement agencies. It’s impossible to know just how far Lexipol’s reach has spread as the company declines to provide a list of clients, saying that it is proprietary information. But according to an analysis published last year in the Texas Law Review, “although there are other private, nonprofit, and government entities that draft police policies, Lexipol is now a dominant force in police policymaking across the country.”

As a result, a large portion of American police policy is now being drafted by a little-known private company with no public oversight.

The company has warned against changes meant to reduce excessive force and hold officers accountable.

The company, which now has more than 200 employees, was founded in 2003 by Bruce Praet and Gordon Graham, two former law enforcement officers who later became attorneys, and businessman Dan Merkle. Before founding Lexipol, Praet was an attorney for the Los Angeles police union and the Orange city attorney’s office, where he handled police litigation.

In an interview, Praet rejected the ACLU’s allegations that Lexipol’s immigration policies were ever unconstitutional or illegal.

Lexipol advertises itself as a time-saver. Instead of drafting and adapting their own policies, departments can simply outsource the job to Lexipol, which pledges to protect agencies from lawsuits by keeping them up to date with the latest court decisions and legislation. To some city officials who rely on the policies, the appeal of the service is the updates and industry best practices it pledges to provide. The company’s terms and conditions specify that Lexipol is not liable for its policies, leaving its clients responsible if the policies are challenged in court, like in Spokane.

But a risk management approach doesn’t always square with better policing. In fact, Lexipol’s focus on vaguer, more flexible policies can shield officers from accountability and hinder reform, legal experts say.

‘Antiquated and counterproductive’

Since nationwide protests over police shootings of Black people erupted in 2014, civil rights groups and policy experts have called for greater oversight and community participation in police policymaking. Police officers are typically given a lot of freedom to decide how and when to use force or arrest someone, so internal policy manuals tend to be the most direct way to regulate officers’ conduct—especially when they include strict guidelines on how to respond to particular situations.

A comprehensive report by a task force that President Barack Obama convened in the wake of the 2014 protests called on police departments to “collaborate with community members, especially in communities and neighborhoods disproportionately affected by crime,” and to develop policies on issues like use of force and racial profiling.

Lexipol maintains that its policies incorporate a range of recommendations for best practices. But the company has warned against changes meant to reduce excessive force and hold officers accountable.

Alan Schlosser, an attorney with the ACLU of Northern California, said Lexipol’s policies are “in some ways antiquated and counterproductive in terms of the direction that we would hope that police departments around the country have been moving.”

In a 2017 blog post on Lexipol’s website, Praet urged agencies not to make policy changes based on the National Consensus Policy on Use of Force, a model policy published by 11 law enforcement organizations, including the Fraternal Order of Police and the International Association of Chiefs of Police. Praet warned against using words like “shall” and “necessary,” which would make particular provisions mandatory rather than optional for officers.

“While ‘de-escalation’ has become the latest buzzword and is conceptually advisable, agencies must exercise extreme caution when mandating action with the use of inflexible ‘shalls,’” Praet wrote.

Praet argues against any policy that goes beyond the standard set by the U.S. Supreme Court, which established that officers’ use of force should be evaluated on whether the force was “objectively reasonable” to an officer on the scene.

They’re designed for maximum protection against civil liability. It’s not maximum protection of civil rights.

Andrea Pritchett founder of Berkeley CopWatch and member of the Berkeley police review commission

“On a broader basis, agencies should not become more restrictive than what officers have learned to function under as dictated by the Supreme Court,” Praet told The Appeal.

Lexipol has also argued against prohibitions on shooting into vehicles, a reform that many departments—including the NYPD since 1972 —have enacted.

“It’s striking to me because it’s a moment the organization placed litigation risks above what a wide range of policy experts have declared is good policy to reduce police killings,” said Joanna Schwartz, who co-wrote the Texas Law Review analysis of Lexipol with Ingrid Eagly.

Lexipol’s client base may be especially in need of good policy to reduce police killings. The Washington Post found that nearly three-quarters of departments that had at least one killing were in jurisdictions with 50 officers or fewer, and those smaller agencies are more likely to be Lexipol subscribers, according to Schwartz and Eagly’s California analysis. Large jurisdictions like San Francisco or New York have the resources to draft their own policies and often incorporate robust civilian oversight.

Meanwhile, nonprofit groups have crafted their own policy guides for law enforcement agencies interested in reform. Schwartz points to the Black Lives Matter-affiliated Campaign Zero, which crafted a model use-of-force policy that incorporates practices from a number of major police departments, and the Immigrant Legal Resource Center, which published a guide featuring policies from several jurisdictions that protect immigrants from federal immigration enforcement. New York University School of Law’s Policing Project also publishes policies based on input from community members, social scientists, and other experts.

“Most experts agree that police policymaking should draw from multiple sources,” Schwartz and Eagley wrote, “including input from local community members regarding their experiences with police, best practices recommended by policing experts, research about the impact of various policies, and analyses of the costs and benefits of different approaches.”

Cutting out the community

Berkeley, California, was long considered a model of community-based policymaking that drew from a range of these sources. But since September, the city’s police department has been issuing more standardized policies from Lexipol. Berkeley formed an independent, civilian-run Police Review Commission in 1973 to make recommendations on department policy. But many general orders written in collaboration with the commission over decades are being tossed, and commission members say they are overwhelmed reviewing hundreds of pages of policies from the Lexipol manual.

“They’re not waiting for PRC approval for anything as far as I can tell,” said Andrea Pritchett, a police review commissioner and the founder of Berkeley Copwatch. “And to be honest it’s hard to tell what actual policies are in effect at this point, whether it’s the old general orders or if they’re just going ahead and training officers on some of the Lexipol policies.”

The department says it has incorporated some commission recommendations and will make other adjustments to Lexipol policy. For example, Berkeley police spokesperson Officer Byron White said changes to the department’s use-of-force policy, required by a 2017 settlement in a lawsuit over Black Lives Matter protests in 2014, would be incorporated into the Lexipol policy. He also said language would be retained from the department’s orders on First Amendment activities and racial profiling once those policies are adopted.

“We believe the community deserves a police agency with up-to-date policies that are in line with industry standard best practices,” White said. “Lexipol provides the Berkeley Police Department with regular policy updates in response to new legislation, new case law, and/or the evolving best practices from around the country.”

The company instructed officers to consider English proficiency to establish reasonable suspicion that a detainee has committed an immigration violation.

While Lexipol provides largely identical policy language to its subscriber agencies, Praet objects to the use of the word “boilerplate,” saying that the policies are intended to be customizable by their client agencies. “We encourage them if they want to have civilian participation to customize policy,” Praet said.

But in Pritchett’s view, the policies she has seen from Lexipol focus on protecting the department rather than residents.

“They’re designed for maximum protection against civil liability. It’s not maximum protection of civil rights,” Pritchett said of the Lexipol policies. “I find it to be very disappointing that the good work done by so many members of the community over so many years has been uniformly just tossed out.”

Protecting the police

It’s not clear whether the company is succeeding in protecting departments.

Even before the Spokane settlement, Lexipol’s policies were called into question. In a 2015 policy update, the company instructed officers to consider English proficiency to establish reasonable suspicion that a detainee has committed an immigration violation. In 2017, the ACLU of Southern California sent a letter to Praet warning him that this and other elements of the policy encouraged profiling and illegal detentions in violation of the Fourth Amendment.

Lexipol has since updated its immigration policy in California to comply with the passage of Senate Bill 54, the “sanctuary state” law limiting cooperation between local law enforcement and federal immigration enforcement. In an interview with The Appeal, Praet reiterated that he disagreed with the ACLU’s analysis. When asked if Lexipol still provided the same language to agencies in other states, Praet said, “Other states don’t have SB 54.”

A review of publicly available Lexipol policies found some that still allow officers to consider English proficiency, including in agencies in Arizona, Colorado, Illinois, Indiana, Maryland, Minnesota, Missouri, Ohio, Oklahoma, Washington and Wisconsin. Some of those agencies had updated their policies as recently as November, and the policy even remains in place in some cities in California.

The company’s marketing material says agencies that use Lexipol are subject to fewer claims and pay out less money than agencies that do not. “If we can ensure that an agency is operating under current legal standards or best practices, then necessarily they’re less vulnerable to liability,” Praet said.

The company provided a one-page infographic showing agencies that use Lexipol paid 67 percent less for monetary legal claims and had 37 percent fewer claims than agencies that do not, based only on data from agencies in Colorado. It also said agencies that switched to Lexipol saw a 48 percent reduction in amounts paid and 45 percent reduction in claims, based only on agencies in Oregon. Lexipol says it is still conducting studies in other states.

Schwartz told The Appeal that Lexipol would not provide her with any underlying data to support claims that paying for its policies saves money in potential lawsuits. “It may be true but we have no verification that it is,” she said.

Lexipol, however, won’t become more transparent unless its subscribers demand it or governments regulate it, Schwartz said.

“Lexipol is making very significant profits off of local law enforcement agencies and local jurisdictions, and those agencies and jurisdictions are not demanding more transparency and are not demanding better info on lawsuit filings and payouts,” Schwartz said. “Subscribers have a powerful hand if they use it to demand Lexipol be more transparent.”