Use of Force Use of Force 2014
Review: Review: • Tennessee v Garner (1985) Tennessee v. Garner (1985) • Graham v. Connor (1989) • Scott v. Harris (2007) S i (200 ) • Brousseau v. Haugen (2004) • Plumhoff v. Rickard (2014) (To be argued 3/4/2014) / / )
What’s left of Garner? What s left of Garner? • Where the officer has probable cause to believe p that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed b bl t b li th t h h itt d a crime involving the infliction or threatened infliction of serious physical harm, deadly force p y , y may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
Graham’s Three Part Test Graham s Three Part Test • Seriousness of Offense • Physical Threat ▫ Subject Offender Size/Ability ▫ Availability of Weapons ▫ Persons Present ▫ Subject Actions Subject Actions • Active Resistance or Attempt to Evade Arrest by Flight Now…consider the options on the government interest scale and balance
What does it mean? What does it mean? • The greater the government interest ‐ the The greater the government interest the greater the power of government actors to act • Where is the government interest higher ‐ Terry Where is the government interest higher Terry Stop (Reasonable Suspicion) or Arrest (Probable Cause) – Serious of Offense – Physical Threat to Officer or Others (How Great) – Active Resistance or Attempt to Evade Arrest by Flight
9 th Circuit 9 Circuit • Did officer consider lesser alternatives Did officer consider lesser alternatives • Other Circuits ‐ no requirement but sometimes O h Ci i i b i the courts put the consideration on the plus side for officers where they considered id f ffi h h id d alternatives though not required to do so.
Jails Jails • What is status of inmate? • What circuit are you in? • Trends: – Pre ‐ Arraignment ‐ 4 th / but see 5 th (Texas) 5 th (T t 4 th / b t P A i ) – Pre ‐ Trial Detainee ‐ 14 th – Sentenced ‐ 9th • Malicious and Sadistic or in good faith to maintain order, discipline, and security • What • What was need for force in comparison to the amount as need for force in comparison to the amo nt actually used? • Was force tempered by follow ‐ up.
Force Continuums Force Continuums • Have they outlived their usefulness? Have they outlived their usefulness? • Why are they confusing? • How many variations are there? i i h ? • Remember, this is one law enforcement operations where the Supreme Court has told us how to analyze…
Who gets to use a more significant option?
What about? What about? • Running away? Running away? • Seriousness of offense and need to apprehend? apprehend? • The if this, then that problem…
TASER TASER • Multiple Deployments Multiple Deployments • Long Duration • Direct Chest Shot i Ch Sh • Elevation • Flight
Thomas v. Nugent ‐ Petition for Writ of Certiorari • Passive Resistance Passive Resistance • Wanted Subject • Handcuffed by non ‐ compliant d ff d b li • Multiple Deployments ‐ based on reports it appears most were in drive ‐ stun…
Death Case from 5 th Circ. May go to US Supreme Ct. • The district court further noted, in another part of its , p opinion granting Taser International’s motion for summary judgment on a state law claim, that “a trained police officer using his Taser X26 . . . Nine times on a police officer using his Taser X26 Nine times on a handcuffed individual is not a use ‘reasonably anticipated’ by TI as the manufacturer.” Thus, the company “had no indication Officer Nugent would use “ Off his ECD in a way that deviated from proper policy and procedures.” p
Death Cases: Death Cases: Fontenot/Turner v TASER ‐ chest shot 37 Fontenot/Turner v. TASER chest shot 37 seconds ‐ plus 5 seconds ‐ hand compliance ‐ The particular taser employed in the incident the Model X26 The particular taser employed in the incident, the Model X26 device (X26 taser), had been the subject of several academic studies. TI knew about these studies, in which researchers had concluded that the device posed a risk of ventricular fibrillation, l d d th t th d i d i k f t i l fib ill ti a cause of cardiac arrest, especially when the electrical current from the taser was applied near the subject’s heart. Nevertheless, TI failed to warn taser users to avoid deploying the taser’s electrical current in proximity to the heart .
Cont’d Cont d • Upon our review we hold that the district Upon our review, we hold that the district court did not err in entering judgment in favor of Fontenot on the liability aspect of the of Fontenot on the liability aspect of the negligence claim in accordance with the jury’s verdict However we also hold that the verdict. However, we also hold that the damages award is not supported by the evidence and we remand the matter to the evidence, and we remand the matter to the district court for a new trial limited to that issue issue.
VF VF • “Ventricular fibrillation is the most serious Ventricular fibrillation is the most serious cardiac rhythm disturbance,” and occurs when the “heart’s electrical activity becomes the heart s electrical activity becomes disordered.” American Heart Association, Ventricular Fibrillation (Sept 5 2012) Ventricular Fibrillation (Sept. 5, 2012)
Failure to Warn of VF Failure to Warn of VF • Although TI later revised its training materials Although TI later revised its training materials and the X26 taser operating manual before Turner’s death those revised documents did Turner s death, those revised documents did not provide warnings concerning the risk of ventricular fibrillation or cardiac arrest when ventricular fibrillation or cardiac arrest when the taser is fired at a suspect’s chest.
T i i Training at the time of shot… h i f h • Notably, this TI Training Bulletin, which the CMPD provided to its y, g , p officers, discussed only the potential for respiratory harm, rather than the risk of severe cardiac problems, resulting from the use of the X26 taser. • Shortly after TI issued the June 2005 Training Bulletin, TI received the results of a TI ‐ funded study conducted by Dr. Dhanunjaya Lakkireddy concerning additional testing of the X26 taser. This study, which was published in the Journal of the American College of Cardiology, showed that the taser’s electrical pulses can “capture” cardiac rhythms, potentially leading to ventricular fib ill ti fibrillation. The study further noted that if users avoided striking the Th t d f th t d th t if id d t iki th subject’s chest area with the taser’s darts, the risk of ventricular fibrillation would be reduced significantly.
Rescue Position Following Resistance Rescue Position Following Resistance • Once Restraint Accomplished Once Restraint Accomplished • Switch Gears….No Time to Rest • Get subject into a position which facilitates G bj i i i hi h f ili breathing and closely monitor. • A word on cuffing under power
QUESTIONS? QUESTIONS?
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