USE OF FORCE IN CORRECTIONS

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The “use of force” is part of the business we are in. However, with that being said, all force that is used needs to be objectively reasonable and necessary. Excessive force can lead to serious litigation, as there are legal guidelines to consider from the federal level, state level, to your agencies policies and procedures. Excessive force falls under the 4th, 14th and 8th Amendment; from seizure, to due process, to cruel and unusual punishment. 

The 4th Amendment will deal with the circumstances surrounding the initial encounter from the police officer. (See Graham v Connor)

The 14th Amendment will deal with the gray area of the pre trial detainee, from the time of their seizure, to their due process while incarcerated. (See Kingsley v Hendrickson)

Finally, the 8th Amendment will deal will those who have been convicted, as excessive force constitutes cruel and unusual punishment. (See Hudson v McMillian)

If you are a corrections professional in Washington State, below is some great information to know:


RCW 9A.16.010 – USE OF FORCE – The general rule is that only the amount of force which is reasonable and necessary under the circumstances is permitted.

Definitions:

Necessary: means that there are no reasonably effective alternatives that appear to exist and the force that is being used is reasonable to affect its lawful purpose intended.

Deadly force: means the intentional application of force through the use of firearms or any other means reasonably likely to cause death or serious physical injury.

RCW 9A.16.020 – USE OF FORCE – WHEN LAWFUL

While there are 6 justifications for “lawful” use of force, the primary one to remember is the first one:

(1) Whenever necessarily used by a public officer in the performance of a legal duty, or a person assisting the officer and acting under the officer’s direction

For the other justifications, below is an easy way to remember them:

(5 JUSTIFICATIONS- D.E.A.T.H.)

  1. D – Destruction of Property
  2. E – (Escape) To prevent escape
  3. A – Affect arrest
  4. T – Trespass
  5. H – Harm to self or others / Self defense

RCW 9A.16.040 – USE OF DEADLY FORCE

Justifiable homicide or use of deadly force by public officer, peace officer, person aiding.

(1) Homicide or the use of deadly force is justifiable in the following cases:

(a) When a public officer is acting in obedience to the judgment of a competent court; or

(b) When necessarily used by a peace officer to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty.

(c) When necessarily used by a peace officer or person acting under the officer’s command and in the officer’s aid:

(i) To arrest or apprehend a person who the officer reasonably believes has committed, has attempted to commit, is committing, or is attempting to commit a felony;

(ii) To prevent the escape of a person from a federal or state correctional facility or in retaking a person who escapes from such a facility; or

(iii) To prevent the escape of a person from a county or city jail or holding facility if the person has been arrested for, charged with, or convicted of a felony; or

(iv) To lawfully suppress a riot if the actor or another participant is armed with a deadly weapon.

(2) In considering whether to use deadly force under subsection (1)(c) of this section, to arrest or apprehend any person for the commission of any crime, the peace officer must have probable cause to believe that the suspect, if not apprehended, poses a threat of serious physical harm to the officer or a threat of serious physical harm to others. Among the circumstances which may be considered by peace officers as a “threat of serious physical harm” are the following:

(a) The suspect threatens a peace officer with a weapon or displays a weapon in a manner that could reasonably be construed as threatening; or

(b) There is probable cause to believe that the suspect has committed any crime involving the infliction or threatened infliction of serious physical harm.

Under these circumstances deadly force may also be used if necessary to prevent escape from the officer, where, if feasible, some warning is given.

(3) A public officer or peace officer shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable pursuant to this section.

(4) This section shall not be construed as:

(a) Affecting the permissible use of force by a person acting under the authority of RCW 9A.16.020 or 9A.16.050; or

(b) Preventing a law enforcement agency from adopting standards pertaining to its use of deadly force that are more restrictive than this section.

  • Deadly force is only allowed as necessary to prevent immediate serious harm to the officer or another, or to prevent the escape of a violent and imminently dangerous felon.
  • “If the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”

 


THE USE OF FORCE FORMULA:

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LEVELS OF RESISTANCE:

  • STATIC RESISTANCE – tension and isometric muscle actively generated by the violator.
  • EGRESSIVE RESISTANCE – violator is attempting to escape control using evasive and reactive movements. There is now more than static resistance, but the violator is not attacking.
  • AGGRESSIVE RESISTANCE – violator is now attacking or assaulting you. They are trying to injure you in the process of resisting.
  • AGGRAVATED AGGRESSION – violator has pre-planned the attack or is implementing weapons that are potentially lethal.

PROGRESSION OF FORCE APPLICATION:

  • PRESENCE – being there, badge, uniform, lights
  • VERBAL COMMANDS –talking, directing, trying to de-escalate
  • PHYSICAL TOUCHING – guiding or directing the person for minor passive resistance
  • CONTROL TACTICS – using control tactics in trying to gain compliance
  • DEFENSIVE TACTICS – designed to impede the violator as they are attacking you
  • TERMINATION TACTICS – designed to STOP the violator as fast as possible

QUANTUM OF FORCE:

The quantum of force is reasonably foreseeable effects and injuries of a chosen option under the totality of circumstances of the force option use.

This comes down to understanding both the risks and effects of the force you are anticipating to use or are using. Force should never be excessive, and should always be objective.

USE OF FORCE CONTINUUM:

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Hudson v McMillian (1992) – The United States Supreme Court decided based on a 7-2 vote that the use of excessive force against a prisoner may constitute “cruel and unusual punishment” even though the inmate does not suffer any serious Injury.

In this case, the Petitioner Hudson, a Louisiana prison inmate, testified that he had suffered minor bruises, facial swelling, loosened teeth, and a cracked dental plate from a beating by prison guards McMillian and Woods, while he was handcuffed and “shackled” following an argument with McMillian. The respondent Mezo, a supervisor on duty, watched the beating, but merely told the officers “not to have too much fun” condoning the unnecessary use of force.

The“Hudson Test” (Hudson v. McMillian) is 5 question test the courts use to review use of force situation, and a great test corrections officers can use to evaluate and document use of force situations. (PANAM)

  • P – perceived threat by correctional officers?
  • A – any and all efforts to deescalate and reduce?
  • N – need for the application of force?
  • A – amount of force that was used?
  • M – medical issues and extent of any injuries?

INTERMEDIATE FORCE:

Does targeting matter in the use of force (Strikes, OC, TASER® used to impede)

Active resistance + Immediate threat = Intermediate force used to overcome resistance and gain control of violator

OC SPRAY

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OC spray is considered intermediate force (level 2) by the 9th circuit court. It has been this way since 2011 (Young v County of LA – 2011)

Los Angeles County Sheriff pepper sprayed plaintiff and struck him with a baton after plaintiff exited his vehicle and disobeyed the Sheriff’s order to reenter it.

The court held that the use of intermediate force was unreasonable and the suspect clearly posed no threat to the officer or the public safety.

The 9th circuit court considers OC spray as “designed to cause intense pain” and have stated that “a police officer’s use of baton blows, too, presents a significant use of force that is capable of causing pain and bodily injury, and therefore, baton blows, like pepper spray, are considered a form of “intermediate force.”

TASER®

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The courts see the use of a TASER® in drive stun mode as a lower level of force than the deployment of a TASER® in probe mode (Intermediate).

The reason is that a TASER® used in drive stun mode causes localized pain, but does not cause the uncontrolled fall, which occurs in the probe mode that causes neuromuscular incapacitation. The uncontrolled fall is seen by the courts as a “secondary impact” which could cause serious bodily injury or even death.

In Brooks v City of Seattle – 2010, during a traffic stop, Brooks refused to sign the violation and eventually refused to get out of the car and comply with Officer Jones. Officer Jones tased Brooks 3 times in drive stun mode. Brooks claimed excessive force, however, the courts found that the force was not excessive.

Probe mode = Intermediate force (Level 2)

Drive stun mode = Control Tactic / Pain Compliance (Level 1)


Along with knowing when the use of force is lawful according to RCW 9A.16.010 – 040, an easy way to keep in mind the legal aspects of a use of force, is asking yourself if it is:

  • NECESSARY – Where/are there reasonably effective alternatives?
  • REASONABLE – would a reasonable officer react in a similar manner given a similar set of circumstances?
  • JUSTIFIED – was/would it be justified, and can you articulate the reason for the use of force?

CASE LAW:

Kingsley v Hendrickson (2014) – The United States Supreme Court found that in order to prove an excessive force claim, a pre-trial detainee must show that the officers use of that force was objectively unreasonable. He or she does not need to show that the officers were subjectively aware that their use of force was unreasonable. This decision creates a crucial new protection against police abuse. Before Kingsley v. Hendrickson, there was not much clarity on which constitutional protections pre-trial detainees were afforded. As the 8th Amendment applies to convicted prisoners, and the 4th Amendment applies those mistreated by police outside of prisons, Kingsley v. Hendrickson filled in the gray area in dealing with pre-trial detainees. After the decision, any “objectively unreasonable” use of force against pre-trial detainees is seen as unconstitutional, as they cannot be punished at all.

Kingsley was being held in detention at a Monroe County jail in Sparta, Wisconsin in 2010, awaiting trial on drug charges. He was repeatedly ordered by officers to remove a piece of paper he had taped to the overhead light of his cell. In order to remove the paper, Kingsley was ordered to temporarily move to a receiving (holding) cell. Refusing to comply with officers’ commands to stand against the door of his cell to be handcuffed, Kingsley was forcibly removed from the cell by four officers, one of whom was the defendant, Sergeant Stan Hendrickson, and moved to a receiving cell. All parties agreed that in the receiving cell, Sergeant Hendrickson placed his knee in Kingsley’s back and Deputy Sheriff Fritz Degner eventually applied a Taser to his back. However, the officers testified that Kingsley resisted their attempted removal of his handcuffs. Kingsley testified that he had not resisted their attempt and alleged that after being placed in the receiving cell, the officers had slammed his head into a concrete bunk, which the officers denied. After being tased, Kingsley was left handcuffed in the cell for around 15 minutes, after which the officers removed his handcuffs.

Kingsley brought a civil action lawsuit, Kingsley v. Josvai, against Hendrickson and Degner in the U.S. District Court for the Western District of Wisconsin, alleging a use of excessive force by the officers in violation of the Due Process Clause of the Fourteenth Amendment.[2] Judge Barbara Brandriff Crabb denied the officers’ motion for a summary judgment and the case moved to trial. Judge Crabb instructed the jury before deliberation that:

“In deciding whether one or more defendants used ‘unreasonable’ force against plaintiff, you must consider whether it was unreasonable from the perspective of a reasonable officer facing the same circumstances that defendants faced. You must make this decision based on what defendants knew at the time of the incident, not based on what you know now.” The jury found in favor of the officers.

Graham v. Connor (1989) – This was a United States Supreme Court case that determined all excessive force claims by law enforcement officials – deadly or not – in the course of an arrest, investigatory stop, or other “seizure” of a free citizen are properly analyzed under the Fourth Amendment’s “objective reasonableness” standard, rather than under a substantive due process standard.

Petitioner Graham, a diabetic, asked his friend to drive him to a convenience store to purchase orange juice to counteract the onset of an insulin reaction. Upon entering the store and seeing the number of people ahead of him, Graham hurried out and asked Berry to drive him to a friend’s house instead. Respondent Connor, a city police officer, became suspicious after seeing Graham hastily enter and leave the store, followed the car Graham was in and made an investigative stop, ordering both of them to wait while he found out what had happened in the store. Backup police officers arrived on the scene, handcuffed Graham, and ignored or rebuffed attempts to explain and treat Graham’s condition. During the encounter, Graham sustained multiple injuries. He was released when Connor learned that nothing had happened in the store. Graham filed suit in the District Court under 42 U.S.C. 1983 against the respondents, alleging that they had used excessive force in making the stop, in violation of “rights secured to him under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. 1983.” The District Court granted respondents’ motion for a directed verdict at the close of Graham’s evidence, applying a four-factor test for determining when excessive use of force gives rise to a 1983 cause of action, which inquires, inter alia, whether the force was applied in a good-faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm. Johnson v. Glick, 481 F.2d 1028. The Court of Appeals affirmed, endorsing this test as generally applicable to all claims of constitutionally excessive force brought against government officials, rejecting Graham’s argument that it was error to require him to prove that the allegedly excessive force was applied maliciously and sadistically to cause harm, and holding that a reasonable jury applying the Johnson v. Glick test to his evidence could not find that the force applied was constitutionally excessive.

Tennessee v. Garner (1985) – The United States Supreme Court held that under the 4th Amendment, when a law enforcement officer is pursuing a fleeing suspect, he or she may not use deadly force to prevent escape unless “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” The courts finally decided that unless it is “necessary”, a law enforcement officer may not use deadly force to prevent the escape of a fleeing felon.

At about 10:45 p.m. on October 3, 1974, Memphis police officers Leslie Wright and Elton Hymon were dispatched to answer a burglary call next door. Officer Hymon went behind the house as his partner radioed back to the station. Hymon witnessed someone running across the yard. The fleeing suspect, Edward Garner, stopped at a 6-foot-high (1.8 m) chain-link fence. Using his flashlight, Hymon could see Garner’s face and hands, and was reasonably sure that Garner was unarmed. The police testified that they believed Garner was 17 or 18 years old; Garner was in fact 15 years old. After Hymon ordered Garner to halt, Garner began to climb the fence. Believing that Garner would certainly flee if he made it over the fence, Hymon shot him. The bullet struck Garner in the back of the head, and he died shortly after an ambulance took him to a nearby hospital. Ten dollars and a purse taken from the burglarized house were found on his person.

Hymon acted according to a Tennessee state statute and official Memphis Police Department policy authorizing deadly force against a fleeing suspect. The statute provided that “if, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.”

Garner’s father then brought suit in the United States District Court for the Western District of Tennessee under the Civil Rights Act of 1871, 42 U.S.C. § 1983, naming the City of Memphis, its mayor, the Memphis Police Department, its director, and Officer Hymon as defendants. The District Court found the statute, and Hymon’s actions, to be constitutional. On appeal, the United States Court of Appeals for the Sixth Circuit reversed. The Court of Appeals held that the killing of a fleeing suspect is a “seizure” for the purposes of the Fourth Amendment, and is therefore constitutional only when it is reasonable. The court then found that based on the facts in this case, the Tennessee statute failed to properly limit the use of deadly force by reference to the seriousness of the felony.

Madrid v. Gomez (1996) – This was a case in 1990 where prisoners at the Pelican Bay State Prison in Crescent City, California filed a class action lawsuit against the California Department of Corrections in the U.S. District Court for the Northern District of California. The plaintiffs, represented by the Prison Law Office, alleged that the conditions of their confinement were unconstitutional, and they asked the court for declaratory and injunctive relief. Specifically, the plaintiffs alleged that the defendants unconstitutionally condoned a pattern and practice of using excessive force against inmates, failed to provide inmates with adequate medical and mental health care, imposed inhumane conditions in the Security Housing Unit, utilized cell-assignment procedures that exposed inmates to an unreasonable risk of assault from other inmates, failed to provide adequate procedural safeguards when segregating the prison gang affiliates in the Security Housing Unit, and failed to provide inmates with adequate access to the courts.

Hudson v McMillian (1992) – The United States Supreme Court decided based on a 7-2 vote that the use of excessive force against a prisoner may constitute “cruel and unusual punishment” even though the inmate does not suffer any serious Injury.

In this case, the Petitioner Hudson, a Louisiana prison inmate, testified that he had suffered minor bruises, facial swelling, loosened teeth, and a cracked dental plate from a beating by prison guards McMillian and Woods, while he was handcuffed and “shackled” following an argument with McMillian. The respondent Mezo, a supervisor on duty, watched the beating, but merely told the officers “not to have too much fun” condoning the unnecessary use of force.

“Training is cheaper than ignorance” Mildred O’linn

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