Ethical Use of Force [POST Ethical Use of Force 2015] Page 1 Table of Contents Performance Objectives 3 Ethical Building Blocks 4 Definition of Reasonable Force 4 Four Elements of Reasonableness 5 Three Elements that must be included in Use of Force 5 Confrontational Continuum 5 Johnson v. Glick Test 6 United States Federal Constitutional Parameters of Law Enforcement Force 7 How Much Force is Acceptable 10 Use of Force Legal Analysis 17 Scott v. Harris 28 Tennessee v. Garner 29 Graham v. Connor 30 Law Enforcement Canine Use of Force Research 32 Police Use of Force, Tasers and Other Less-Lethal Weapons 40 Study of Deaths Following Electro Muscular Disruption 65 Problem Solving Electronic Control Weapon Guidelines 139 Use of Taser Ruled Unconstitutional in Two Cases by Ninth Circuit Article 198 Pointing and Threatening to Use Electronic Control Weapons 202 9th Circuit Cases 210 The Impact of Less-Lethal Weapons and Tactics 240 Use of Force Tactics and Non-Lethal Weaponry 248 New Studies Counter Plaintiffs’ CEW Arguments 257 3 Keys to Improve Public’s Perception of Force 263 How Cops Can Help Citizens Better Understand Police Use of Force 264 7 Rules to Prevent ‘excessive use-of-force’ accusations 266 Success Story: Cops 2, Plaintiffs 0 in Excessive Force Lawsuits 268 6 Ways cops can aid Their Lawyers to Win Use-of-Force Litigation 271 Defining Reasonable versus Necessary 274 Defining Objectively Reasonable Force 277 Deadly Force: Thou Shall Not (intend to) Kill 278 8 Keys to a Well Written Report 280 How to Protect Your Career 282 Proper Use of Force Report 284 Understanding Video Taped Police Use of Force 285 Dynamic Response Model 288 Use of Force – Decision Making Checklist 294 7 Things Never to Say to Anyone 296 [POST Ethical Use of Force 2015] Page 2 Performance Objectives By the end of this training, students will pass a written exam at or above 70% on the following: • Describe the difference between ethical and legal use of force • List de-escalation techniques • Name three of the five ethical building blocks • List three things that interfere with doing the right thing • List the four elements of reasonableness • Define reasonable force • Name the three elements that must be included when using force • Discuss the Johnson v. Glick test • Importance of proper documentation • List the “Four Problem Ps” that agencies must deal with in the aftermath of the use of deadly physical force • Explain “Totality of Circumstances” • Discuss the Confrontational Continuum • Discuss less lethal options • Case law and legal ramifications • Force versus tactics • Legal & Judicious • Discuss vicarious liability as it relates to use of force Consider these Questions ♦ Could being ethical put me at greater risk? ♦ If force is justifiable, does that mean it is ethical? ♦ What does the term “reverence for life” mean? ♦ Can you name two things you can do beforehand to assist in making ethical force decisions? [POST Ethical Use of Force 2015] Page 3 Ethical Use of Force Legal & Judicious Correlating force options with resistance Managing Emotions Intervening to prevent excessive use of force A reverence for life & liberty Importance of team work in use of force incidents Documenting critical information Ethics Building Blocks 1. _______________________________________________________________________________________ 2. _______________________________________________________________________________________ 3. _______________________________________________________________________________________ 4. _______________________________________________________________________________________ 5. _________________________________________________________________(physical & organizational) Make a Commitment to: Do the right thing because you truly want to do the right thing o Not because you might be watched, filmed, or get in trouble What keeps officers from doing the right thing? . _______________________________________________________________________________________ . _______________________________________________________________________________________ . _______________________________________________________________________________________ . _______________________________________________________________________________________ . _______________________________________________________________________________________ Individual Ethical Use of Force ____________________ to do the right thing ____________________ & ____________________ of the legal authority to use force Ability to identify ____________________ ____________________ that are consistent with legal or other restrictions Ability to use force in a manner that is ____________________ ____________________ Ability to re-evaluate facts & circumstance as the incident changes & apply a reasonable force option Evaluate force from two different options: • Is it _______________________ • Is it _______________________ Definition of Reasonable Force A ____________________ term for how much and what kind of control a peace officer may use in a given circumstance. [POST Ethical Use of Force 2015] Page 4 Four Elements of Reasonableness 1. Judged from the perspective of a ____________________ officer 2. Examined through the eyes of an officer on the ____________________ at the time the force was applied. 3. Based on ____________________ & ____________________ confronting the officer without regards to the officers underlying intent or motivation 4. Based on the ____________________ that the officer acted properly under the established law at the time. Three Elements that must be included in Use of Force: 1. _______________________________________________________________________________________ 2. _______________________________________________________________________________________ 3. _______________________________________________________________________________________ [POST Ethical Use of Force 2015] Page 5 Johnson v. Glick Test What was the ____________________ for the officer’s use of force? What was the ____________________ between the officer’s need to use force and the ____________________ of force that the officer used? What was the ____________________ of the injuries inflicted on the person by the officer’s use of force? Was the officer’s use of force applied in ____________________ ____________________ or maliciously and sadistically for the purpose of causing harm? There is no “they” in Ethical ♦ “I” is the center of the word – EthIcal ♦ Ethical Use of Force is an individual assignment ♦ You hold the key [POST Ethical Use of Force 2015] Page 6 USE of FORCE CONSTITUTIONAL STANDARDS TIMELINE =! 4th Amendment "Objective Reasonableness" Test 4th Amendment INCARCERAnON CONTINUES .B :. "Objective c! Reasonableness" 14th = Detention into Arrest: OR Amendment 1$ 14th Am&ndrnent 14th Amendment 8th Amendment "Shock the e 1) Move from site of stop "Shock the "Shock the Conscience" "Cruel & Unusual Com.. ::ience" '0 2) Too much force Conscience" Test Test Punishment" Test Test i 3) Detain too long Depending on the ~ totality of the :;J:! BRIEF DEfENTtON CUSTODIAL ARREST circumstances PRE..(:ONVICTION POST CONVICTION Medical Care Issues •.. 14th Amendment "Due Process" Test - tlDeliberate Indifference" to person's ··Serious Medical Needs" Copyright 1997 by lAAW International, Inc. All righw reserved. [POST Ethical Use of Force 2015] Page 7 Use-of-Force Recipient Status Matrix (© Copyright 2014 by LAAW International, Inc. All rights reserved.) Free Person Force Pre-Trial Detainee Convicted and Recipient Seized Free Person - 4th Amendment Standard Not Seized Free Person Incarcerated Person Under 4th Amendment Constitutional 4th Amendment - Federal Officers 5th Amendment - Federal Officers 8th Amendment - Fed Officers Amendment 14th Amendment - State/Local Officers 14th Amendment - State/Local Officers 14th Amendment - State/Locals Use-of-Force Objective Reasonableness Standard Shock the Conscience - Deliberate Indifference Standards Cruel & Unusual Punishment Standard (Objective Test) Due Process Clause (Subjective Tes) (Subjective Test) Qualified “every reasonable official would have understood that what he” did violated the law. Ashcroft v. al-Kidd, 131 U.S. 2011, 131 S. Ct. 2074, 2080 (2011) Immunity (emphasis added);Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808 (2009); and Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L.Ed.2d 272 (2001). Some Leading Graham v. Connor, 490 U.S. 386, 104 L.Ed.2d 443, County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. Hudson v. McMillian, 503 U.S. 1, 112 Cases 109 S.Ct. 1865 (1989); Tennessee v. Garner, 471 1708, 140 L.Ed.2d 1043 (1998); Johnson v. Glick, 481 F.2d S.Ct. 995 (1992); Wilson v. Seiter, U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); 1028 (2nd Cir. 1973), cert denied, 414 U.S. 1033, 94 S.Ct. 462, 501 U.S. 294, 111 S.Ct. 2321 (1991); Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 38 L.Ed.2d 324 (1973) Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. Whitley v. Albers, 475 U.S. 312, 106 1378, 103 L.Ed.2d 628 (1989); Scott v. Harris, 550 1861, 60 L.Ed.2d 447 (1979); Rochin v. California, 342 U.S. S.Ct. 1078, 89 L.Ed.2d 251 (1986); U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); 165, 72 S.Ct. 205, 96 L.Ed.2d 183 (1952). See also Brothers Estelle v. Gamble, 429 U.S. 97, 97 Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994). v. Klevenhagen, 28 F.3d 452 (5th Cir. 1994); Valencia v. S.Ct. 285, 50 L.Ed.2d 251 (1976); Wiggins, 981 F.2d 1440 (5th Cir.), cert. denied, 509 U.S. 905, Hope v. Pelzer, 536 U.S. 730, 122 S. 113 S.Ct. 2998, 125 L.Ed.2d