Peace Officer Basic Training Civil Liability & Use of Force Unit 2 – Topic 6 Ohio Peace Officer Training Commission Education & Policy Section 1650 State Route 56, SW  P.O. Box 309  London, Ohio 43140 Phone: 800-346-7682  Fax: 866-393-1275 OPOTCEducationandPolicy@OhioAttorneyGeneral.gov Effective Date: January 1, 2018 Course Hours: Six (6) Student Goal: The student will understand civil liability issues related to the law enforcement profession. OPOTC CURRICULUM COMMITTEE Chief Kim Jacobs, Columbus Division of Police, OPOTC Commissioner and Curriculum Committee Chairperson Chief Clayton A. Harris, Cuyahoga Community College Police Department, OPOTC Commissioner Dr. Emily J. Passias, PhD, Ohio Department of Education, OPOTC Commissioner S U B J E C T M AT T E R E X P E R T C O M M I T T E E Aaron Coey, Law Enforcement Training Officer, OPOTA Lee Graf, Captain, Springfield Police Division David Henry, Esq., Senior Assistant Attorney General, OPOTA Lucinda Lee, Esq., Law Enforcement Training Officer, OPOTA Andrew Sexton, Esq., Senior Attorney – Criminal Division, City of Dayton Law Department Jason Simon, Captain, Youngstown Police Department Jerry Snay, Commander, Stark State Community College Seth Walker, J. D., Lieutenant/Public Safety Manager, The Ohio State University – Wooster Campus Curriculum Coordinator: Eric Schaefer, Training Coordinator – Law Enforcement Training Officer, OPOTC Legal Reviewer: Justin Hykes, Esq., Deputy Director of Education & Policy, OPOTC OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 2 of 126 CONTENTS References ................................................................................................................................ 4 Additional Resources ................................................................................................................. 8 Course Materials ........................................................................................................................ 9 Notes to Instructor.....................................................................................................................10 Preparation ...............................................................................................................................11 Student Performance Objectives ...............................................................................................12 Civil Liability ..............................................................................................................................13 Fourth Amendment Standard ....................................................................................................17 Use of Non-Deadly Force ..........................................................................................................24 Use of Deadly Force .................................................................................................................30 Civil Liability in Traffic Accidents/Pursuits..................................................................................39 Due Process & Other Situations ................................................................................................44 Evaluating Use of Force – Video Scenarios ..............................................................................54 Conclusion ................................................................................................................................55 Worksheet #1 – Irrelevant Factors ............................................................................................56 Worksheet #2– Handcuffing (SPO #3) ......................................................................................58 Worksheet #3 – Techniques/Physical Force .............................................................................61 Worksheet #4 – Impact Weapons .............................................................................................64 Worksheet #5 – Chemical Weapons (SPO #4)..........................................................................66 Worksheet #6 – Electrical Weapons (SPO #5) ..........................................................................68 Worksheet #7 – Stopping Tactics ..............................................................................................72 Worksheet #8 – Diminished Capacity (SPO #6) ........................................................................74 Worksheet #9 – Suspect Armed With a Firearm........................................................................76 Worksheet #10– Suspect Armed With a Knife/Edged Weapon .................................................78 Worksheet #11 – Suspect Using Non-Deadly or Personal Weapons.........................................82 Worksheet #12 – Firearms Used to Stop Vehicles ....................................................................85 Worksheet #1A – Irrelevant Factors – Instructor Key ................................................................87 Worksheet #2A – Handcuffing (SPO #3) – Instructor Key .........................................................90 Worksheet #3A – Techniques/Physical Force – Instructor Key .................................................93 Worksheet #4A – Impact Weapons – Instructor Key .................................................................96 Worksheet #5A – Chemical Weapons (SPO #4) – Instructor Key .............................................98 Worksheet #6A – Electrical Weapons (SPO #5) – Instructor Key ...........................................101 Worksheet #7A – Stopping Tactics – Instructor Key ................................................................105 Worksheet #8A – Diminished Capacity (SPO #6) – Instructor Key ..........................................107 Worksheet #9A – Suspect Armed With a Firearm – Instructor Key..........................................109 Worksheet #10A – Suspect Armed With a Knife/Edged Weapon – Instructor Key ..................111 Worksheet #11A – Suspect Using Non-Deadly or Personal Weapons – Instructor Key...........115 Worksheet #12A – Firearms Used to Stop Vehicles – Instructor Key ......................................118 Practice Exercise ....................................................................................................................120 OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 3 of 126 REFERENCES 42 USCS § 1983 Adkins v. Ohio State Hwy. Patrol, 2011-Ohio-4002 (Ohio Ct. App., Franklin County Aug. 11, 2011) Anderson v. City of Massillon, 134 Ohio St. 3d 380 (2012) Argabrite v. Neer, 149 Ohio St. 3d 349 (Ohio Dec. 27, 2016) Baker v. City of Hamilton, 471 F.3d 601 (6th Cir. Ohio Dec. 18, 2006) Bozung v. Rawson, 439 Fed. Appx. 513 (6th Cir. Mich. Oct. 7, 2011) Brosseau v. Haugen, 543 U.S. 194 (U.S. Dec. 13, 2004) Brower v. County of Inyo, 884 F.2d 1316 (9th Cir. Cal. Sept. 18, 1989) Brown v. Weber, 555 Fed. Appx. 550 (6th Cir. Tenn. Feb. 13, 2014) Buckner v. Kilgore, 36 F.3d 536 (6th Cir. Tenn. Oct. 3, 1994) Cabaniss v. City of Riverside, 231 Fed Appx. 407 (6th Cir. Ohio Apr. 6, 2007) Cass v. City of Dayton, 770 F.3d 368 (6th Cir. Ohio Oct. 16, 2014) Champion v. Outlook Nashville, Inc., 380 F.3d 893 (6th Cir. Tenn. Aug. 19, 2004) Chappell v. City of Cleveland, 585 F.3d 901 (6th Cir. Ohio, Nov. 4, 2009) Colbert v. City of Cleveland, 99 Ohio St. 3d 215 (Ohio July 9, 2003) Colston v. Barnhart, 130 F.3d 96 (5th Cir. Tex. Nov. 19, 1997) County of Sacramento v. Lewis, 523 U.S. 833 (U.S. May 26, 1998) Cty. of Los Angeles v. Mendez, 137 S. Ct. 1539 (U.S. May 30, 2017) Davenport v. Causey, 521 F.3d 544 (6th Cir. Tenn. Apr. 4, 2008) Davis v. Brady, 143 F.3d 1021 (6th Cir. Mich. May 8, 1998) Deshaney v. Winnebago County Dep't of Social Services, 489 U.S. 189 (U.S. Feb. 22, 1989) Dixon v. Donald, 291 Fed. Appx. 759 (6th Cir. Tenn. Sept. 5, 2008) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 4 of 126 REFERENCES (cont.) Eldridge v. City of Warren, 533 Fed. Appx. 529 (6th Cir. Mich. Aug. 5, 2013) Elliott v. Leavitt, 99 F.3d 640 (4th Cir. Md. Nov. 8, 1996) Estate of Hill v. Miracle, 853 F.3d 306 (6th Cir. Mich. Apr. 4, 2017) Farber, B. (Ed). (2011, April). Attorney’s fees in federal civil rights lawsuits part one. AELE Monthly Law Journal 4(101). Retrieved from http://www.aele.org/law/2011all04/201104MLJ101.pdf Farber, B. (Ed.). (2013a, March). Public protection: Intoxicated persons. AELE Monthly Law Journal 3(101). Retrieved from http://www.aele.org/law/2013all03/2013-03MLJ101.pdf Farber, B. (Ed.). (2013b, May). Public protection: Part one-The physically ill. AELE Monthly Law Journal (5)101. Retrieved from http://www.aele.org/law/2013all05/2013-05MLJ101.pdf Fettes v. Hendershot, 375 Fed. Appx. 528 (6th Cir. Ohio Apr. 27, 2010) Foos v. City of Del., 492 Fed. Appx. 582 (6th Cir. Ohio July 16, 2012) Garner, B. A. (Ed.). (2014). Black's law dictionary (10th ed.). St. Paul, MN: Thomson Reuters. Girod, R. (2014). Police liability and risk management: Torts, civil rights, and employment law. Boca Raton, FL: CRC Press. Graham v. Connor, 490 U.S. 386 (U.S. May 15, 1989) Greathouse v. Couch, 433 Fed. Appx. 370 (6th Cir. Ky. July 22, 2011) Griffith v. Coburn, 473 F.3d 650 (6th Cir. Mich. Jan. 10, 2007) Hagans v. Franklin County Sheriff's Office, 695 F.3d 505 (6th Cir. Ohio Aug. 23, 2012) Hayes v. City of Columbus, 2011 U.S. Dist. LEXIS 59527 (S.D. Ohio June 3, 2011) Hermann v. Cook, 114 Fed. Appx. 162 (6th Cir. Ky. Oct. 22, 2004) Hermiz v. City of Southfield, 484 Fed. Appx. 13 (6th Cir. Mich. May 21, 2012) Hewitt v. City of Columbus, 2009-Ohio-4486 (Ohio Ct. App., Franklin County Sept. 1, 2009) Hocker v. Pikeville City Police Dep't, 738 F.3d 150 (6th Cir. Ky. Dec. 17, 2013) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 5 of 126 REFERENCES (cont.) Illinois Law Enforcement Training and Standards Board (ILETSB). (2017, April 14) Evaluation of guidelines for use of force training. Springfield, IL. Jones v. City of Cincinnati, 736 F.3d 688 (6th Cir. Ohio Nov. 29, 2012) Jones v. Reynolds, 438 F.3d 685 (6th Cir. Mich. Feb. 27, 2006) Kappeler, V. E. (2006). Critical issues in police civil liability. Long Grove, IL: Waveland Press, Inc. Landis v. Baker, 297 Fed. Appx. 453 (6th Cir. Mich. Oct. 16, 2008) Lawriter. (2017). Ohio laws and rules: Ohio revised code (R.C.). Retrieved from http://codes.ohio.gov Lee v. City of Norwalk, Ohio, 529 Fed. Appx. 778 (6th Cir. Ohio July 12, 2013) Marchant v. Gouge, 187 Ohio App. 3d 551 (Ohio Ct. App., Richland County May 19, 2010) McCaig v. Raber, 515 Fed. Appx. 551 (6th Cir. Mich. Feb. 21, 2013) McKenna v. Edgell, 617 F.3d 432 (6th Cir. Mich. Aug. 17, 2010) Meirthew v. Amore, 417 Fed. Appx. 494 (6th Cir. Mich. Mar. 30, 2011) Montoute v. Carr, 114 F.3d 181 (11th Cir. Fla. June 10, 1997) Morrison v. Bd. of Trs., 583 F.3d 394 (6th Cir. Ohio Oct. 8, 2009) Newcomb v. City of Troy, 719 F. Supp. 1408 (E.D. Mich. Aug. 18, 1989) Patrick, U. W., & Hall, J. C. (2017). In defense of self and others. Durham, NC: Carolina Academic Press. Pena v. Leombruni, 200 F.3d 1031 (7th Cir. Ill. Dec. 30, 1999) Plumhoff v. Rickard, 134 S. Ct. 2012 (U.S. May 27, 2014) Rahtz, H. (2003). Understanding police use of force. Monsey, NY: Criminal Justice Press. Rhodes v. McDannel, 945 F.2d 117 (6th Cir. Mich. June 10, 1991) Riverside v. Rivera, 477 U.S. 561 (U.S. June 27, 1986) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 6 of 126 REFERENCES (cont.) Robertson v. Dep't of Pub. Safety, 2007-Ohio-5080 (Ohio Ct. App., Franklin County Sept. 27, 2007) Rodriguez v. Farrell, 294 F.3d 1276 (11th Cir. Fla. June 17, 2002) Schott, R. (2012, September). Qualified immunity: How it protects law enforcement officers. Retrieved from https://leb.fbi.gov/articles/legal-digest/legal-digest-qualified-immunity-how-itprotects-law-enforcement-officers Scott v. Harris, 550 U.S. 372 (U.S. Apr. 30, 2007) Smith v. City of Hemet, 394 F.3d 689 (9th Cir. Cal. Jan. 10, 2005) Smith v. Freland, 954 F.2d 343 (6th Cir. Ohio Jan. 6, 1992) Smith v. McBride, 130 Ohio St. 3d 51 (Ohio Sept. 20, 2011) Solomon v. Auburn Hills Police Dep't, 389 F.3d 167 (6th Cir. Mich. Nov. 10, 2004) Solovy v. Morabito, 375 Fed. Appx. 521 (6th Cir. Mich. Apr. 27, 2010) Sparks v. Klempner, 2011-Ohio-6456 (Ohio Ct. App., Franklin County Dec. 15, 2011) State v. White, 2013-Ohio-51 (2013) Tallman v. Elizabethtown Police Dep't, 167 Fed. Appx. 459 (6th Cir. Ky. Jan. 23, 2006) Tenn. v. Garner, 471 U.S. 1 (U.S. Mar. 27, 1985) United States v. Cortez, 449 U.S. 411 (U.S. Jan. 21, 1981) Wilson v. Beebe, 770 F.2d 578 (6th Cir. Mich. Aug. 12, 1985) Ziegler v. Aukerman, 512 F.3d 777 (6th Cir. Mich. Jan. 14, 2008) Zigmund, E. (2007, May). Electronic control devices: Liability and training aspects. AELE Monthly Law Journal 5(501). Retrieved from http://www.aele.org/law/2007-05MLJ501.pdf OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 7 of 126 A D D I T I O N AL R E S O U R C E S Ohio Peace Officer Training Commission. (current version). Peace Officer Basic Training (POBT): Unit 1-7 Fundamentals of Report Writing [Lesson plan]. London, OH: Ohio Attorney General, Ohio Peace Officer Training Commission. Ohio Peace Officer Training Commission. (current version). Peace Officer Basic Training (POBT): Unit 3-4 Crisis Intervention [Lesson plan]. London, OH: Ohio Attorney General, Ohio Peace Officer Training Commission. Ohio Peace Officer Training Commission. (current version). Peace Officer Basic Training (POBT): Unit 6-1 Subject Control Techniques [Lesson plan]. London, OH: Ohio Attorney General, Ohio Peace Officer Training Commission. Ohio Peace Officer Training Commission. (current version). Peace Officer Basic Training (POBT): Unit 6-2 Impact Weapons [Lesson plan]. London, OH: Ohio Attorney General, Ohio Peace Officer Training Commission. Videos referenced within lesson plan are available at www.ohleg.org under the current Peace Officer Basic Training curriculum, Additional Resources folder for 2-6 Civil Liability & Use of Force OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 8 of 126 C O U R S E M AT E R I A L S TEACHING AIDS X Erasable Board/Markers _____ X _____ Easel/Notepads X _____ AV Equipment _____ Lectern/Table X Practice Exercise _____ _____ Proficiency Testing Record _____ Other ___________________________________________________________ X Student Handouts _____ INSTRUCTIONAL TECHNIQUES X Lecture _____ X Group Discussion _____ _____ Demonstration _____ Scenario-based Training X Individual Exercise _____ _____ Hands-on Techniques _____ Role Play X Problem Solving _____ _____ Other ___________________________________________________________ ___________________________________________________________ OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 9 of 126 NOTES TO INSTRUCTOR Instructors are expected to: • Bear in mind the legal, moral, professional and ethical implications of instructing in a commission-approved program. • Follow student-to-instructor ratios (if applicable) • Follow student-to-equipment ratios (if applicable) • Use any and all opportunities which may arise during instruction of the required material to point out to the students the legal, moral, professional and ethical responsibilities they will bear to their employers and communities while serving in an official capacity. • Understand that this information provided is the minimum standard. Instructors are expected to go above the minimum. • Incorporate as many principles of adult learning as possible to include Problem Based Learning (PBL), Student Centered Learning (SCL), active group discussions, scenario activities and other responsible adult learning techniques. Emphasis should be placed on the benefits of ethical behavior and the consequences of unethical behavior throughout. POWERPOINT PRESENTATIONS Many lesson plans are accompanied by a very basic PowerPoint Presentation. These are most often a series of slides that include a title slide and the SPOs for the topic. This is intended to be a baseline presentation that instructors are expected to use as a starting point while preparing to teach the topic. Instructors may save the file locally and add slides in support of their teaching efforts. These may include instructor biographical information, expansion of the SPOs, information pertinent to the topic, illustrations, group exercises and other items that will enhance student learning. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 10 of 126 P R E P AR AT I O N A. Introduction Intro – PPT #1 1. Instructor 2. Course B. The purpose of this topic is to introduce the basic concepts of civil liability and use of force to peace officers C. SPOs List of SPOs PPT #2 – #4 OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 11 of 126 S T U D E N T P E R F O R M AN C E O B J E C T I V E S At the end of this topic, the student will be able to: 1. Describe the relevant factors used in determining if force was reasonable. 2. Explain the differences between active and passive resistance. 3. Describe when handcuffing may be considered unreasonable force. 4. Describe when use of a chemical weapon may be considered unreasonable force. 5. Describe the difference between reasonable and unreasonable force when using electrical weapons. 6. Explain the civil liability considerations associated with using force against those with diminished capacity/mental illness. 7. List circumstances when an officer may use deadly force to achieve a seizure. 8. Explain the variables an officer should use to assess the presence of an imminent threat. 9. Explain officer liability when responding to emergency calls. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 12 of 126 C I V I L L I AB I L I T Y Large Group Discussion – The instructor should begin this topic by initiating a class discussion concerning well-publicized events involving police use of force (e.g., Michael Brown/Ferguson, Eric Garner/New York City). Solicit students’ feelings on the state of policing as it pertains to use of force incidents (justified and unjustified). Advise the students that the overarching point of this topic is not to “scare” them away from taking proper action when necessary, but to act as outlined and required by the U.S. Constitution. Tell the class to use the knowledge gained during this topic as a base for the practical scenarios that will be presented throughout the remainder of the academy. Knowledge of the law, coupled with being able to anticipate a subject’s actions, will increase the chances of a safe and successful outcome. POBT: Unit 6-1 Subject Control Techniques Stress the importance of being able to articulate actions taken in a use of force incident (i.e., describe what the subject did, what you did, why you did it). Don’t be vague in your report narrative. POBT: Unit 1-7 Fundamentals of Report Writing A. Federal civil rights claims 1. Generally contain any of the following a. A claim of wrongful detention, arrest, or search by an officer b. A claim that an officer used excessive force against a citizen and/or c. A claim of an agency’s failure to train or unconstitutional policies or practices 2. Civil Action for Deprivation of Rights 42 U.S.C. § 1983 a. Elements (1) Acting under color of law … (2) Deprive … (3) Any person of … (4) Clearly established Constitutional or federal statutory rights OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 13 of 126 b. Most civil actions against peace officers are brought for alleged violations of this code provision, which is why these are commonly referred to as a 1983 action/suit 3. Qualified immunity a. Qualified immunity shields an officer from a civil suit when he/she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances he/she faced Brosseau v. Haugen (2004) b. In other words, you may be sued civilly for something you did while performing law enforcement duties within the scope of your employment, but the doctrine of qualified immunity helps protect you from being liable for civil damages Schott (2012) B. Civil lawsuit basics 1. There is the possibility that you will be sued as a result of an action taken while on duty 2. Being sued can be stressful for you, your family, and your department 3. Lawsuits take a long time to be resolved 4. In these cases, someone is trying to hold you personally accountable for the alleged damage you caused him/her – typically money is sought to compensate for the alleged damages 5. Even when a lawsuit is settled or a lawsuit against you is lost at trial, your agency, generally, will have represented and indemnified you a. Indemnification – in basic terms, means the department has a duty to pay any damages assessed against you in a lawsuit if the damages relate to the course and scope of your employment and are not punitive in nature b. While you may hire your own attorney to represent you, most often, political subdivisions will provide for the defense of an employee in any civil action or proceeding caused by an act or omission by the employee in connection to his/her position R.C. 2744.07 C. Overview of the civil litigation process 1. Burden of proof for a civil trial is preponderance of evidence OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 14 of 126 a. Preponderance of evidence – if it is more likely to exist than not (i.e., one side only has to show it is correct by 50.1%) b. Compared to criminal trial burden of proof (i.e., proof beyond a reasonable doubt), this is significantly less 2. Penalties a. Damages – in civil cases, damages means money ordered to be paid to another person as compensation for loss or injury Garner (2014) (1) Compensatory – damages that compensate for actual injury or loss (2) Punitive – damages awarded in addition to actual damages when the defendant acted with recklessness, malice, or deceit; also assessed as a way of penalizing the wrongdoer or making an example to others (a) Unlike state agencies, under certain circumstances, municipalities cannot pay punitive damages for the officer R.C. Chapter 2744 (b) While it is unlikely that an officer would have to personally pay damages, there is the theoretical possibility that it could happen b. Injunction – court order demanding a specific action (e.g., restraining order) or preventing a specific action (e.g., chokeholds) Garner (2014) c. Settlement (1) Deciding to settle a case against you does not mean that you are admitting guilt or wrongdoing on your part (2) Ordinarily, each party to a lawsuit pays their own legal fees Farber (2011) when they settle (3) Entering into a settlement is often a financial decision; the costs of settling may be significantly lower than the potential costs of going to trial (4) Federal law 42 USC § 1988 allows a court, in its discretion, Farber (2011) to award reasonable attorneys’ fees as part of costs to a prevailing party in federal civil rights lawsuits, including cases brought under 42 USC § 1983 OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 15 of 126 (5) The potential cost to the losing party can be substantial if ordered to pay the attorneys’ fees of the prevailing party Farber (2011) (6) For example, Riverside v. Rivera Riverside v. Rivera (1986) (a) Officers, acting without a warrant, broke up a gathering using tear gas, and arrested four of the plaintiffs on charges that were ultimately dismissed (b) The plaintiffs alleged the officers used unnecessary force during the arrests (c) The Court awarded the plaintiffs a total of $33,350 in compensatory and punitive damages, in addition to attorneys’ fees in the amount of $245,456.25 d. Summary judgment – a judgment granted on a claim or defense about which there is no genuine issue of material fact and on which the one who makes the motion is entitled to prevail as a matter of law Garner (2014) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 16 of 126 F O U R T H AM E N D M E N T S T AN D A R D A. Excessive force standard defined by Graham v. Connor Graham v. Connor (1989) 1. Graham v. Connor is the case that provides the excessive force/unreasonable use of force standard a. Use of force by an officer must be objectively reasonable in light of the facts and circumstances confronting the officer b. If a use of force is found to be objectively unreasonable, it violates the Fourth Amendment’s individual guarantee against unreasonable seizures and, thus, is unconstitutional c. Facts of this case Show video “Graham v. Connor,” available in the Additional Resources folder, to help illustrate the facts of the case. (1) 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 (2) Upon entering the store and seeing the number of people ahead of him, Graham hurried out and asked his friend to drive him to another friend’s house instead (3) Officer Connor became suspicious after seeing Graham hastily enter and leave the store, and made an investigative stop of the vehicle Graham was in (4) Although Graham’s friend told Connor that Graham was suffering from a “sugar reaction,” Connor ordered the pair to wait there until he could find out what happened at the store (5) As the officer returned to his patrol car to call for backup, Graham got out of the vehicle, ran around it twice, sat down on a curb, and briefly passed out (6) Assuming Graham was intoxicated, Connor and several other officers handcuffed him and threw him headfirst into a police car (7) Finally, Officer Connor received a report that Graham had done nothing wrong at the convenience store, so the officers drove him home and released him OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 17 of 126 (8) During his encounter with the police, Graham sustained a broken foot, cuts on his wrists, a bruised forehead, an injured shoulder, and claimed to have developed a loud ringing in his right ear Large Group Discussion – Facilitate a large group discussion as to whether or not the students think this was a reasonable use of force. 2. The Court defined the issue as follows a. An officer’s actions must be objectively reasonable in light of the facts and circumstances confronting him/her b. This is to be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight c. Not every push or shove, even if it may later seem unnecessary in the peace of the judge’s chambers, violates the Fourth Amendment 3. The constitutional standard of objective reasonableness provides a fair and logical means for assessing an officer’s actions in any context a. It is critical to understand that the reasonableness standard is “not capable of precise definition or mechanical application” b. The court acknowledged the need for flexibility by stating, “…officers are often forced to make split-second judgments, in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation” 4. RELEVANT FACTORS IN DETERMINING IF FORCE WAS REASONABLE a. Severity of the crime suspected (e.g., theft vs. armed robbery) Graham v. Connor (1989) SPO #1 – PPT #5 b. Whether the suspect is an immediate threat to the safety of officer(s) or others c. Whether the suspect is actively resisting d. Whether the suspect was attempting to evade arrest by flight OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 18 of 126 5. Irrelevant factors for determining reasonable force Small Group Discussion – Divide the class into groups and have them work through Worksheet #1. Graham v. Connor (1989) Worksheet #1 Worksheet #1A Facilitate a large group discussion to review answers. The instructor should anchor the discussion with Worksheet #1A to ensure the material is covered. a. Intent or motivation – the best of intentions cannot convert an unreasonable use of force into a reasonable one, and the worst of intentions cannot convert a reasonable use of force into an unreasonable one b. Facts discovered after the event c. Policy violations Patrick & Hall (2017) (1) Courts have consistently held that such claims are not relevant to the question of whether the officer’s actions violated the Constitution (2) A violation of a law enforcement agency’s policies does not convert a reasonable use of force into an unreasonable use of force Question to Class – What are some examples of this? (3) Conversely, a judicial finding of reasonableness does not necessarily protect an officer from administrative discipline due to a policy violation d. Pre-seizure conduct Patrick & Hall (2017) (1) Generally considers whether the officer’s pre-seizure conduct … (a) Allowed the suspect to pose a threat? (b) Provoked the threat? (c) Created the threat? (2) The United States Supreme Court (USSC) does not view an officer’s pre-seizure conduct as being relevant to the reasonableness of that officer’s decision to use force Cty. of Los Angeles v. Mendez (2017) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 19 of 126 6. Graham summary a. Courts apply the Graham test to all claims of excessive force b. The use of reasonable force is determined by the totality of the circumstances c. In order to use deadly force, you must have probable cause to believe the suspect poses an immediate threat of serious physical harm to you or others d. Courts must judge your use of force decisions with an understanding that the event occurred in tense, uncertain, and rapidly evolving circumstances e. Your application of force is judged based on what is reasonable, not what is most minimal Question to Class – Can each officer’s “objective reasonableness” vary for the same situation? If so, how? B. Determining reasonableness 1. It is also judged without regard to whether a different use of force option was available 2. An officer’s use of force does not have to be the “least intrusive” option available a. The reasonableness of any particular governmental activity does not necessarily turn on the existence of alternative, less intrusive means b. The officer only needs to select a level of force that is within the range of the “objectively reasonable” force options available to him/her 3. Reasonableness is not a specific point on a continuum, but a range of options Rahtz (2003) 4. Training and physical conditioning are also factors a. The officer with a high level of skill in using a baton is more likely to choose that as a force option b. The officer in poor physical condition, knowing he will not likely be successful in an extended physical encounter, may resort to higher levels of force more quickly OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 20 of 126 5. In United States v. Cortez, the USSC also noted a. A law enforcement officer’s perspective is unique United States v. Cortez (1981) Patrick & Hall (2017) b. The courts will give weight to the officer’s unique knowledge, training, and experience (1) Totality of the circumstances implies that there is no single determining factor, and one must consider all the facts and circumstances (2) This is often aligned with officer/subject factors Zigmund (2007) (a) Number of officers/subjects (b) Size (c) Age (d) Skill (e) Conditioning (f) Injury (g) Duration of action (h) Environmental factors (i) Known violent history of suspect (j) Pre-attack indicators (k) Suspect’s mental or psychiatric history, known to the officer at the time (l) Presence of innocent bystanders who could be harmed if force is not used 6. Reasonable implies a thought process Patrick & Hall (2017) a. Officers must be able to apply critical thinking in light of the facts and circumstances confronting them, and then respond effectively and rationally b. Officers are not relieved of the responsibility to “reason,” and the goal of rational policies and training should reinforce the officer’s ability to do so OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 21 of 126 c. Facts determine what is reasonable (1) Simply explaining or using “officer safety” as justification for a particular use of force option is not sufficient (2) Officers must be able to properly identify and articulate specific facts which justified their use of force (3) This includes all the force used, not just the initial force (e.g., multiple uses of the Taser, the use of baton strikes and OC) C. TYPES OF RESISTANCE SPO #2 – PPT #6 Large Group Discussion – Ask the class the following questions: What do you think passive resistance means? What do you think active resistance means? Can you explain and/or demonstrate examples of each? The instructor should anchor the discussion to ensure the SPO is covered. 1. There are two basic types of resistance: active resistance and passive resistance 2. Passive resistance – when a person exhibits no resistive movement in response to verbal commands and other direction ILETSB (2017) a. It is unreasonable to use significant force on a restrained subject, even if some level of passive resistance is presented Meirthew v. Amore (2011) b. When a subject refuses to follow an officer’s orders but otherwise poses no safety threat, use of significant force is unreasonable Meirthew v. Amore (2011) SPO #2 – PPT #7 c. Failing to exit a vehicle, in itself, is passive resistance Eldridge v. City of Warren (2013) d. Noncompliance, when not paired with any signs of verbal Eldridge v. City of hostility or physical resistance, is passive resistance Warren (2013) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 22 of 126 3. Active resistance – when a person exhibits resistive movement to avoid physical control or, as a passive resistor, the person presents a credible threat to an officer (e.g., lying on hands and not responding to commands to make hands visible) ILETSB (2017) SPO #2 – PPT #8 a. Force is only justifiable in the face of active resistance (i.e., some outward manifestation, either verbal or physical, on the part of the subject suggesting volitional and conscious defiance) Eldridge v. City of Warren (2013) SPO #2 – PPT #9 b. If a subject actively resists arrest, officers do not violate the Fourth Amendment by using an electrical weapon to subdue him/her Hagans v. Franklin County Sheriff’s Office (2012) Large Group Discussion – The instructor should use well known events (e.g., U.C. Davis pepper spray incident), as well as any personal experience, to demonstrate the types of resistance officers are likely to encounter. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 23 of 126 USE OF NON-DEADLY FORCE A. Use of non-deadly force 1. The use of deadly force does not always result in death or great bodily harm, and non-deadly force can be lethal Kappeler (2006) 2. Therefore, non-deadly force is a matter of fact to be determined by a court contingent upon the circumstances of each case 3. Non-deadly force is an act not intended to result in death or great bodily injury Kappeler (2006) a. It involves the use of equipment and techniques not commonly associated with causing a fatality or serious injury b. This can range from merely touching or moving a suspect, to the use of chemical weapons, electrical weapons, or impact weapons 4. Handcuffing a. WHEN HANDCUFFING MAY BE CONSIDERED UNREASONABLE FORCE SPO #3 – PPT #10 (1) The Fourth Amendment prohibits unduly tight or excessively forceful handcuffing during the course of a seizure Morrison v. Bd. of Trs. (2009) (2) Absent exigent circumstances, an officer choosing to handcuff a peaceable arrestee in a manner likely to cause serious harm amounts to excessive force Dixon v. Donald (2008) (3) An officer that makes a brief examination of a severe obvious medical injury and chooses to handcuff in a manner that is likely to cause serious harm amounts to excessive force Dixon v. Donald (2008) b. In order for an excessive force claim based on unduly tight handcuffing to survive summary judgment, a plaintiff must offer sufficient evidence for a reasonable jury to find that all of the following exist Solovy v. Morabito (2010) SPO #3 – PPT #11 (1) Plaintiff complained that the handcuffs were too tight (2) The officer ignored those complaints OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 24 of 126 (3) The plaintiff experienced some physical injury resulting from the handcuffing Small Group Discussion – Divide the class into groups and have them work through Worksheet #2. Worksheet #2 Worksheet #2A Facilitate a large group discussion to review answers. The instructor should anchor the discussion with Worksheet #2A to ensure the material is covered. 5. Techniques/physical force a. In order to demonstrate excessive force, a plaintiff must demonstrate that a seizure occurred and that the force used in effecting that seizure was objectively unreasonable Bozung v. Rawson (2011) b. Non-deadly excessive physical force to subdue arrestee is still considered excessive force regardless if death occurs Solomon v. Auburn Hills Police Dep't (2004) Worksheet #3 Worksheet #3A Small Group Discussion – Divide the class into groups and have them work through Worksheet #3. Facilitate a large group discussion to review answers. The instructor should anchor the discussion with Worksheet #3A to ensure the material is covered. 6. Impact weapons a. The impact weapon is the only weapon that is capable of delivering multiple levels of force – from officer presence (i.e., display of the weapon) to deadly force POBT: Unit 6-2 Impact Weapons (1) Pain target – strikes to pain targets (e.g., common peroneal, tibial, radial) are intended to defend and control only until the subject complies (2) Injury target – striking injury targets (e.g., joints, hands, feet, tailbone) with an impact weapon requires a higher threat level than pain targets (3) Deadly target – striking these areas (e.g., head, neck, spine, sternum) may be considered deadly force b. An unresisting arrestee’s right to be free from baton strikes during arrest is clearly established Jones v. City of Cincinnati (2012) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 25 of 126 c. An excessive force claim may be supported by allegations police officers beat arrestee with batons without giving him the chance to comply with their orders Small Group Discussion – Divide the class into groups and have them work through Worksheet #4. Jones v. City of Cincinnati (2012) Worksheet #4 Worksheet #4A Facilitate a large group discussion to review answers. The instructor should anchor the discussion with Worksheet #4A to ensure the material is covered. 7. Chemical weapons – WHEN USING CHEMICAL WEAPONS MAY BE CONSIDERED UNREASONABLE FORCE SPO #4 – PPT #12 a. Using chemical weapons on an arrestee who has already been subdued and who poses no threat is excessive force (i.e., it is not reasonable to use a chemical weapon on someone after the person has quit resisting) b. Whenever you use a chemical weapon on someone who is already handcuffed, especially in a cruiser, the court is going to take a very hard look at the use of that chemical weapon SPO #4 – PPT #13 c. There are circumstances when using a chemical weapon on someone handcuffed or secured in a vehicle might be reasonable and justifiable, but you will have to articulate that the person’s conduct posed a danger to himself/herself, you, or the public, given the fact the person was in restraints Cabaniss v. City of Riverside (2007) SPO #4 – PPT #14 Small Group Discussion – Divide the class into groups and have them work through Worksheet #5. Worksheet #5 Worksheet #5A Facilitate a large group discussion to review answers. The instructor should anchor the discussion with Worksheet #5A to ensure the material is covered. 8. Electrical weapons a. Although this information is focused on the Taser because of its widespread adoption as an electronic control device, the same considerations apply equally as well to other, similar weapons Patrick & Hall (2017) b. Use of a Taser need not be attempted in advance of using deadly force; it is no different than any other non-deadly force option Patrick & Hall (2017) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 26 of 126 c. USING ELECTRICAL WEAPONS (1) It is unreasonable to use an electrical weapon on a non-resisting or passively resisting suspect Eldridge v. City of Warren (2013) SPO #5 – PPT #15 (2) In cases where the court has concluded that an officer’s use of force was justifiable because it was in response to active resistance, some outward manifestation, either verbal or physical, on the part of the suspect had suggested a deliberate choice to be defiant (3) In the excessive force context, noncompliance alone does not indicate active resistance; there must be something more SPO #5 – PPT #16 (4) When an officer employs an electrical weapon on a suspect who is actively resisting, such action does not constitute unreasonable force Small Group Discussion – Divide the class into groups and have them work through Worksheet #6. Worksheet #6 Worksheet #6A Facilitate a large group discussion to review answers. The instructor should anchor the discussion with Worksheet #6A to ensure the material is covered. 9. Stopping tactics a. Use of force in pursuit termination techniques Scott v. Harris (2007) (1) Facts (a) Deputy Scott attempted to stop Harris for speeding. Harris failed to stop, and a pursuit exceeding speeds of 85 mph ensued on a two-lane road with other motorists and pedestrians present (b) After over six minutes of pursuing Harris, Deputy Scott requested permission to use a pursuit termination technique (c) He received permission, but instead struck Harris’s vehicle with his push bumper causing Harris to lose control and crash (d) As a result of the crash, Harris became a quadriplegic OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 27 of 126 (e) Harris sued under 42 U.S.C. § 1983 alleging excessive use of force; Scott appealed the case to the USSC (2) Outcome (a) After viewing a video tape that quite clearly contradicted the version of the story told by the driver and adopted by the court of appeals, the USSC held that a police officer’s attempt to terminate a high speed chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment even when it places the fleeing motorist at risk of serious injury or death Video can be found on YouTube by searching for Scott v. Harris (b) The deputy did not contest that his decision to terminate the car chase by ramming his bumper into the driver’s vehicle constituted a seizure (c) The car chase that the driver initiated posed a substantial and immediate risk of serious physical injury to others; the deputy’s attempt to terminate the chase by forcing the driver off the road was reasonable, and the deputy was entitled to summary judgment b. Use of roadblocks (1) If there is no means of escape, the use of roadblocks is equated to a seizure under the Fourth Amendment (2) A 1983 action was filed alleging that officers, acting under color of law, violated the defendant’s rights when the stolen car the defendant was driving at high speeds to elude pursuing officers crashed into a police roadblock Brower v. County of Inyo (1989) (a) An 18-wheel semi-truck was placed across the roadway with no escape route available for traffic; cruiser lights were directed into the fleeing driver’s eyes, making it impossible for the driver to see the truck (b) The basis of the suit was that the roadblock constituted an unreasonable seizure due to excessive force because the roadblock was placed in such a way that it could likely kill the driver (c) The court upheld the lower court’s decision OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 28 of 126 i. A “seizure” under the Fourth Amendment does not automatically occur whenever there is a governmentally caused termination of an individual’s freedom, but only when there is governmental termination of freedom of movement “through means intentionally applied” ii. A seizure alone is not enough for 1983 liability. It must also be unreasonable iii. In this case, the roadblock was not just a significant show of authority to induce a voluntary stop; it was designed to produce a stop by physical impact if the driver did not voluntarily comply Small Group Discussion – Divide the class into groups and have them work through Worksheet #7. Worksheet #7 Worksheet #7A Facilitate a large group discussion to review answers. The instructor should anchor the discussion with Worksheet #7A to ensure the material is covered. B. CIVIL LIABILITY CONSIDERATIONS ASSOCIATED WITH USING FORCE AGAINST THOSE WITH DIMINISHED CAPACITY/MENTAL ILLNESS SPO #6 – PPT #17 POBT: Unit 3-4 Crisis Intervention 1. Federal courts have ruled that the diminished capacity of an unarmed suspect must be taken into account when assessing the reasonableness of the amount of force exerted Griffith v. Coburn (2007) 2. Different tactics should be employed against an unarmed, emotionally distraught individual who is resisting arrest or creating a disturbance than would be used against an armed and dangerous criminal who has recently committed a serious offense Landis v. Baker (2008) SPO #6 – PPT #18 3. An individual does not need to be mentally competent in order to pose a reasonable threat; actual mental state is irrelevant to any determination of reasonableness in the use of deadly force Patrick & Hall (2017) SPO #6 – PPT #19 Small Group Discussion – Divide the class into groups and have them work through Worksheet #8. Worksheet #8 Worksheet #8A Facilitate a large group discussion to review answers. The instructor should anchor the discussion with Worksheet #8A to ensure the material is covered. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 29 of 126 U S E O F D E AD L Y F O R C E A. Use of deadly force 1. Any force that carries a substantial risk that it will proximately result in the death of any person R.C. 2901.01 2. While the USSC has never definitively defined deadly force, it is often described in lower courts as force that creates a substantial risk of death or serious bodily injury Smith v. City of Hemet (2005) 3. The USSC has provided the justification for using deadly force as probable cause to believe there is an imminent threat of serious physical harm or, more simply stated, a threat of serious physical harm justifies the use of force that creates a significant risk of death B. Tennessee v. Garner case facts Tenn. v. Garner (1985) Show video “Tenn. v. Garner,” available in the Additional Resources folder, to help illustrate the facts of the case. 1. Under Tennessee law at that time, a police officer could use all necessary means to effect an arrest after the officer has given notice of intent to arrest the suspect 2. At about 10:45 p.m., Memphis police officers Elton Hymon and Leslie Wright were dispatched to answer a prowler inside call 3. Upon arriving at the scene, they saw a woman standing on her porch and gesturing toward the adjacent house 4. She told the officers she had heard glass breaking and that “they” or “someone” was breaking in next door 5. While Wright radioed the dispatcher to say that they were on the scene, Hymon went behind the house 6. He heard a door slam and saw someone run across the back yard 7. The fleeing suspect, Edward Garner, stopped at a 6 foot high chain link fence at the edge of the yard 8. With the aid of a flashlight, the officer, though not certain, was “reasonably sure” and “figured” that Garner was unarmed OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 30 of 126 9. While Garner was crouched at the base of the fence, Hymon called out, “Police, Halt” and took a few steps toward Garner 10. Garner then began to climb over the fence 11. Acting under the authority of the law as it was at that time, one of the officers shot at Garner, hitting him in the back of his head, and ultimately killing him 12. The officer used deadly force despite being reasonably sure the suspect was unarmed and thinking that he was 17 or 18 years old C. THE USSC DETERMINED THAT THE FOURTH AMENDMENT PERMITS LAW ENFORCEMENT OFFICERS TO USE DEADLY FORCE TO ACHIEVE SEIZURES IN TWO GENERAL CIRCUMSTANCES Tenn. v. Garner (1985) SPO #7 – PPT #20 1. To protect themselves or others from immediate threats of serious physical injury and/or … 2. To prevent escape of a fleeing “dangerous” person 3. The USSC also stated that a police officer may not seize an unarmed fleeing suspect by shooting him in the back 4. The Fourth Amendment does not permit a police officer to seize an unarmed, non-dangerous suspect by shooting him dead Cass v. City of Dayton (2014) 5. At the same time, where an officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force Cass v. City of Dayton (2014) D. Imminent threat Patrick & Hall (2017) 1. The law justifies the use of deadly force to counter immediate threats to life, but it is not always clear what constitutes an imminent threat 2. Imminent means simply that the danger could happen at any moment – it does not have to have happened or be happening – but could happen at any moment 3. Reasonableness of a belief of an imminent threat is viewed in light of the perceptions, knowledge, experience, and reasonable inferences of the officer at the moment the decision is made to use deadly force OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 31 of 126 4. No ideal model exists for officers to use in determining beforehand when an imminent threat will occur State v. White (2013) 5. However, there is no mandate in the law to run through a list of various force options (i.e., continuum) a. There is nothing in the law that requires a sequence of actions prior to the use of deadly force b. The only question must be: was the officer objectively reasonable in his/her perception that the individual posed a risk of imminent injury or death? 6. As law enforcement officers, you are trained to recognize a variety of pre-attack indicators that are indicative of an imminent attack (e.g., noncompliance with orders, presence of a weapon, unseen hands) and to consider them in light of the following … Patrick & Hall (2017) a. Situational context is an important factor b. Proximity is another (i.e., the likelihood of being shot, struck, or successfully hit by an assailant increases exponentially as the distance decreases) 7. ASSESSING THE PRESENCE OF AN IMMINENT THREAT REQUIRES EXAMINATION OF A NUMBER OF VARIABLES FROM THE OFFICER’S PERSPECTIVE SPO #8 – PPT #21 a. Likelihood of a weapon being present b. Capability of that weapon c. Proximity of the parties at risk relative to the weapon’s capability (e.g., knife in the hands of someone 50 yards away vs. 10 yards away) d. Exposure of the officers or others (e.g., cover, concealment, physical barriers) SPO #8 – PPT #22 e. Subject’s actions independent of weapons and the likelihood of injury if those actions continue 8. Realities of action versus reaction a. Action is faster than reaction b. Officers are almost always in the position of having to react to the actions of those with whom they are dealing OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 32 of 126 c. Officers cannot know what a particular subject is going to do; they can only react to what the subject does and what they infer to be the subject’s intentions d. This illustrates the unavoidable necessity that officers must train to respond to the threat and not the action e. This means that a police officer is not required to wait until a shot is fired, or even until a weapon is visible, before being justified in using deadly force f. An officer cannot control the actions of the suspect, and it is unreasonable to expect an officer to let a situation develop until he/she is certain that he, she, or others will or will not be hurt Class Exercise and Discussion – Action Versus Reaction The instructor should demonstrate to the class that action is faster than reaction. This can be accomplished in many ways: it can be an exercise known to the instructor, a video demonstration, or by the use of props and/or inert/training weapons (e.g., blue gun). Allow a few minutes to demonstrate so each student can participate and fully understand the importance of this concept. 9. Officers neither have to be absolutely certain of the risk of attack, nor must they actually see a weapon before using deadly force Search the internet for law enforcementrelated videos explaining this important concept State v. White (2013) 10. By reviewing the following relevant cases, it is possible to identify general indicators of threatening behavior which, when applied to specific facts, can guide and support an officer’s reasonable belief in the existence of an immediate threat a. Suspect armed with a firearm Small Group Discussion – Divide the class into groups and have them work through Worksheet #9. Worksheet #9 Worksheet #9A Facilitate a large group discussion to review answers. The instructor should anchor the discussion with Worksheet #9A to ensure the material is covered. (1) Although a person threatening officers with a gun would easily meet the description of an immediate threat, the fact that there are court decisions on the issue illustrates the point that seemingly obvious cases can raise questions that must be resolved in court Patrick & Hall (2017) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 33 of 126 (2) When a person aims a weapon in a police officer’s direction, that officer has an objectively reasonable basis for believing that the person poses a significant risk of serious injury or death. An officer need not wait for a suspect to open fire on him/her, much less wait to be struck by a bullet, before the officer may fire back Greathouse v. Couch (2011) b. Suspect armed with a knife/edged weapon Small Group Discussion – Divide the class into groups and have them work through Worksheet #10. Worksheet #10 Worksheet #10A Facilitate a large group discussion to review answers. The instructor should anchor the discussion with Worksheet #10A to ensure the material is covered. (1) The debate of imminent threat of a knife or similar instrument is even more intense than the discussion of guns (2) Although knives do not pose the distant threat that a firearm does, the courts have consistently recognized the threats posed by suspects armed with knives, specifically when the suspect is in relatively close proximity to the officer (3) It is reasonable, as a matter of law, for an officer to use deadly force only when a suspect is both holding a knife and engaged in some other threatening activity Chappell v. City of Cleveland (2009) c. Suspect armed with an impact weapon (1) Impact weapons can be used to inflict serious injury and justify the use of deadly force to prevent it Patrick & Hall (2017) (2) If the target of an attacker is a police officer, additional danger emerges – if the officer is incapacitated, the suspect could have access to the officer’s weapon d. Unarmed suspect attempting to gain access to a weapon (1) If a suspect armed with the firearm is the most obvious example of an immediate threat, an unarmed suspect would be on the other end of the spectrum (2) This does not mean that he/she is not an immediate threat OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 34 of 126 (3) Often, the potential for danger is not recognized when a traditional weapon is not present; however, an aggressively resisting/attacking unarmed suspect can be extremely dangerous (4) The potential for injury to the officer is still present, and the potential danger posed by the suspect gaining control of the officer’s weapons is real e. Unarmed suspect using personal weapons Patrick & Hall (2017) (1) The courts have acknowledged the risks posed to officers by aggressively non-compliant suspects who use personal weapons (e.g., hands, feet) in a manner to injure or kill (2) There is the possibility of officers being killed or seriously injured by personal weapons depending on the specific circumstances surrounding the case f. Suspect armed with non-deadly weapons Patrick & Hall (2017) (1) As the case law already discussed has shown, officers are not required to assume unreasonable risks like being shot, stabbed, or struck with an impact weapon while performing their duties (2) If case law is applied rationally, it also means that officers are not required to allow themselves to be rendered incapable of defending themselves through any other means, including electrical or chemical weapons Small Group Discussion – Divide the class into groups and have them work through Worksheet #11. Worksheet #11 Worksheet #11A Facilitate a large group discussion to review answers. The instructor should anchor the discussion with Worksheet #11A to ensure the material is covered. g. Firearms used to stop vehicles Patrick & Hall (2017) (1) Motor vehicles present unique challenges for law enforcement (2) Their mass and mobility create significant dangers to officers, other motorists, and pedestrians whether used intentionally or to evade arrest OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 35 of 126 (3) Law enforcement officers cannot know the purpose or intent of the driver; they can only perceive the threat and attempt to counter it (4) The U.S. Court of Appeals for the Sixth Circuit has applied a consistent framework in assessing deadly force claims involving vehicular flight Cass v. City of Dayton (2014) (a) Although each case is tethered to its specific factual context, the critical question is typically whether the officer has reason to believe that the fleeing car presents an imminent danger to officers and members of the public in the area (b) An officer is justified in using deadly force against a driver who objectively appears ready to drive into an officer or bystander with his/her car (c) But, as a general matter, an officer may not use deadly force once the car moves away, leaving the officer and bystanders in a position of safety (d) An officer may, however, continue to fire at a fleeing vehicle, even when no one is in the vehicle’s direct path, when the officer’s prior interactions with the driver suggest that the driver will continue to endanger others with his/her car Small Group Discussion – Divide the class into groups and have them work through Worksheet #12. Worksheet #12 Worksheet #12A Facilitate a large group discussion to review answers. The instructor should anchor the discussion with Worksheet #12A to ensure the material is covered. E. Preventing escape 1. Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment’s reasonableness requirement 2. Deadly force may not be used unless it is necessary to prevent the escape and 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 Tenn. v. Garner (1985) Refer to the facts of Tenn. v. Garner presented earlier in the lesson plan 3. The Tennessee statute that authorized the officer to fire the fatal shot was deemed unconstitutional because it authorized the use of deadly force against apparently unarmed, non-dangerous fleeing suspect OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 36 of 126 4. The fact that the unarmed suspect had broken into a dwelling at night did not automatically mean that he was dangerous 5. When a fleeing suspect is considered dangerous Patrick & Hall (2017) a. The consideration is broken down into two factors (1) The first factor is if the suspect threatens the officer with a weapon (such an action would clearly justify deadly force as an imminent threat) (2) The second factor is whether there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm b. Both of these factors require, at a minimum, that the suspect threatened infliction of serious physical harm 6. Necessity a. Under the Garner decision, in addition to having probable cause to believe a fleeing suspect poses a significant threat to officers or others, the use of deadly force to prevent the escape may be necessary (1) The intention of this rule is to limit the use of deadly force to prevent escape to those instances where the fleeing suspect is both dangerous and unwilling to submit to arrest (2) Although court cases are lacking examples to illustrate this, it seems logical that if officers can make the arrest without subjecting themselves and others to significant risks, deadly force would not be necessary (3) That could happen if officers are able to chase down and subdue the suspect through means other than deadly force or the suspect chooses to surrender b. Another relevant issue to the necessity requirement is the Garner instruction that some warning be given where feasible (1) Although the court gave no clear guidance, the term “warning” suggests that it is more than just a command to stop OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 37 of 126 (2) This is based on the possibility that a fleeing suspect, no matter how dangerous, may choose to surrender if informed that failure to do so could have dire consequences (3) Keep in mind that this rule only applies to fleeing suspect cases, not to those involving immediate threats (4) Also, if giving a warning would place officers or others in danger, it is not required OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 38 of 126 C I V I L L I AB I L I T Y I N T R AF F I C AC C I D E N T S / P U R S U I T S A. Emergency call 1. The first legal question that will be asked in any cruiser-involved accident is, “was the officer responding to an ‘emergency call’ at the time of the accident?” 2. A political subdivision may be found liable for injury, death, or loss to persons or property if caused by the negligent operation of a motor vehicle by its employee upon public roads when the employee is engaged in the scope of his/her employment and authority R.C. 2744.02 3. OFFICER LIABILITY WHEN RESPONDING TO EMERGENCY CALLS SPO #9 – PPT #23 a. An officer who is responding to an emergency call is governed by the sovereign immunity standard R.C. 2744.02(A)(1) b. Emergency call – a call to duty, including, but not limited R.C. 2744.01(A) to, communications from citizens, police dispatchers, and personal observations by peace officers of inherently dangerous situations that demand an immediate response on the part of a peace officer c. This is a critical concept relative to cruiser-involved accidents because if you are on an emergency call at the time you had an on-duty accident, you and the agency you work for would be immune from liability unless you were acting in a willful and/or wanton manner (1) Willful misconduct implies an intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury Anderson v. Massillon (2012) (2) Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result Anderson v. Massillon (2012) (3) Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is subsequently greater than negligent conduct Anderson v. Massillon (2012) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 39 of 126 (4) An emergency call involves a situation to which a response by a peace officer is required by the officer’s professional obligation Colbert v. City of Cleveland (2003) (5) Whether an officer is on an emergency call centers on whether the officer was required to respond by his/her professional obligation Sparks v. Klempner (2011) (6) Emergency calls are not restricted to officers who are specifically dispatched to a situation; officers may rely on their personal observations and judgment to determine whether their response is proper Marchant v. Gouge (2010) (7) Remember, just because you are on an emergency call at the time you are involved in an accident doesn’t mean you are automatically not liable; if you were driving in a willful and/or wanton manner at the time the accident occurred, you could be found personally liable 4. Colbert v. Cleveland Colbert v. City of Cleveland (2003) a. Facts (1) While on patrol in the early morning hours, two police officers observed two males in a car make an apparent exchange for money with a third male (2) The officers believed that they had just witnessed a drug deal (3) Accordingly, the officers started out in their patrol car, intending to pursue the suspects’ car on a parallel route (4) The officers did not put on their emergency lights or siren (5) Upon entering the intersection, the patrol car was struck broadside by a vehicle driven by Colbert b. R.C. Chapter 2744 states that an emergency call means a call to duty c. Duty is defined as obligatory tasks, conduct, service, or functions enjoined by order or usage according to rank, occupation, or profession d. Thus, a call to duty involves a situation to which a response by a peace officer is required by the officer’s professional obligation OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 40 of 126 e. The court pointed out that not all calls to duty have to involve inherently dangerous situations f. Thus, the officers in this case, who were investigating a possible criminal act, were found to have been responding to an emergency call when their patrol car collided with Colbert’s car; immunity applied 5. Smith v. McBride Smith v. McBride (2011) a. Facts (1) Late in the evening, a township police sergeant was at his police headquarters in an unincorporated area of the county when he heard a general dispatch call from a sheriff's deputy, in the same county, requesting assistance because the deputy was on foot and was pursuing a fleeing suspect (2) The call originated about two miles from the sergeant’s location in what was known to be a high-crime area outside of the township's jurisdiction (3) The sergeant immediately headed toward the location in a marked police cruiser. Although he was speeding, he was not using his siren or emergency lights. Driving in light traffic, he approached an intersection and had a green light to proceed through the intersection, which is located in the city, a third jurisdiction (4) Another motorist, driving in the opposite direction, tried to turn left in front of the officer, which resulted in a traffic crash (5) The speed limit at this location was 45 miles per hour and evidence in the record indicates that the officer was traveling at about 64 miles per hour (6) Smith, an injured passenger, filed a personal injury suit claiming, in the absence of a mutual-aid agreement, the police sergeant did not have a professional obligation to respond to the dispatch that ultimately caused him to be at the intersection outside of his jurisdiction where the accident occurred OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 41 of 126 b. The Ohio Supreme Court held that the police sergeant was on an emergency call as a matter of law when the accident occurred. The absence of a mutual-aid agreement between the township and the county did not preclude application of political subdivision immunity c. There was evidence establishing that the police sergeant’s actions were undertaken pursuant to his professional obligation as a police officer and were a legitimate response to a general call for assistance regarding a nearby deputy sheriff, on foot, pursuing a fleeing suspect, after dark, in a high-crime area B. Willful, wanton, or reckless 1. The second legal question asked when an officer has a cruiser involved accident is, “if the officer was responding to an emergency call at the time of the accident, was the officer’s driving willful, wanton, and/or reckless at the time of the accident?” 2. If you are engaging in emergency driving without the benefit of lights and sirens activated, you must operate the vehicle with due regard. The lack of lights and sirens could be seen as willful, wanton, or reckless, depending on the circumstances Hewitt v. City of Columbus (2009) 3. Pursuits a. If you are in a pursuit or responding at a high rate of speed to a call to duty, you must slow down before entering intersections with lights or stop signs. If you enter an intersection against a red-light while driving at a rate of speed that doesn’t allow you to react to another vehicle entering the intersection, your actions could be deemed wanton misconduct under the law Robertson v. Dep’t of Pub. Safety (2007) b. Any agency that employs law enforcement or employs those with arrest authority under the Revised Code shall adopt a policy for the pursuit in a motor vehicle of any person who violates a law of this state or an ordinance of a municipal corporation R.C. 2935.031 c. Pursuit/civil liability where a third party motorist was injured by the fleeing person (1) Even though R.C. Chapter 2744 still applies to these situations, the courts do look at pursuits a little differently when someone is hurt and the actual crash did not involve the cruiser OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 42 of 126 (2) Basically, when a crash occurs with a cruiser hitting someone, it is a straight-forward R.C. Chapter 2744 analysis; but, when it is a crash where the fleeing person hits someone, then it is R.C. Chapter 2744 plus the extreme and outrageous standard that applies (3) Extreme and outrageous conduct standard (Ohio Supreme Court) Argabrite v. Neer (2016) (a) In order to meet the extreme and outrageous conduct standard, the conduct must be so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community (b) Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his/her resentment against the actor and lead him/her to exclaim, “Outrageous!” Obviously, this is an exceptionally difficult standard to meet OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 43 of 126 D U E P R O C E S S & O T H E R S I T U AT I O N S A. Due process clause of the Fifth and Fourteenth Amendments 1. Restricts the authority of the federal and state governments, and governs the use of force against persons not seized within the meaning of the Fourth Amendment, as well as pre-trial detainees 2. Both the Fifth and Fourteenth Amendments prohibit deprivation of “life, liberty, or property without due process of law …” 3. Due process rights are established through the Fifth Amendment, and extended to the states through the Fourteenth Amendment 4. At the time it was included in the Constitution, due process was a principle that a person could not be subjected to government actions affecting the person’s life, liberty, and property without some legal process 5. The USSC has frequently noted the generalized nature of due process, and has struggled to come up with a clear definition 6. Much like the Fourth Amendment standard, the Due Process standard gives considerable respect to an officer’s judgment in high-stress and fast-moving situations 7. County of Sacramento v. Lewis is the most significant due process case in this area County of Sacramento v. Lewis (1998) a. Lewis was the passenger on a motorcycle being pursued by officers for speeding. During the course of the pursuit, the motorcycle tipped over, dumping Lewis onto the highway and into the path of a police car, which struck and killed him b. Lewis’s estate sued officers and the department for alleged violations of Lewis’s Fourth and Fourteenth Amendment rights c. The USSC concluded that, even if the officer’s decision to engage in and continue the high-speed pursuit violated the reasonableness held up by tort law and department policy, it did not violate due process d. This case highlights one of the major differences between the Fourth Amendment standard of “objective reasonableness,” under which the subjective intent of the officer is not relevant to the question of “reasonableness,” and the Due Process standard of a “purpose to cause harm” OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 44 of 126 B. Failure to render assistance Kappeler (2006) 1. In certain circumstances, officers may have a duty to render assistance to sick or injured people 2. If such a duty exists in a given situation, and if officers do not provide that assistance, they may be subjected to civil liability C. Failure to intervene – essentially, any police officer who fails to intervene to prevent other law enforcement officers from infringing on the constitutional rights of citizens is liable if the officer … Girod (2014) 1. Knows that excessive force is being used 2. Knows that a citizen has been arrested without lawful justification or knows that any other constitutional violation is being committed by another officer and 3. Had a realistic opportunity to intervene to prevent the violation D. Unintentionally applied 1. Unfortunately, sometimes officers unintentionally apply force on a person who is not considered seized (i.e., innocent bystander) 2. While this may not be considered a Fourth Amendment rights violation, it could potentially fall under the Due Process standard 3. Case example a. Case facts (1) July 3, 2001, Harold Lee asked Randall Babb to drive him from Owensboro, KY, to Elizabethtown, KY. Lee was initially driving Babb's vehicle, but Lee became agitated after getting lost, so Babb took over the driving. At some point after the men entered the Elizabethtown city limits, Officer William Bland of the Elizabethtown Police Department attempted to stop Babb's vehicle for a traffic violation Tallman v. Elizabethtown Police Dep't (2006) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 45 of 126 (2) The vehicle drove away at a high rate of speed as Officer Bland, on foot, approached Babb's vehicle. Officer Bland returned to his car, and a high-speed chase of Babb’s vehicle ensued. The chase lasted for eight minutes until the tires of Babb’s vehicle struck “stingers” which had been placed in its path by the Kentucky State Police. Once the vehicle was stopped, Babb exited the vehicle and began to run away from the scene (3) Bland stopped his vehicle parallel to Babb's vehicle. Lee remained in the passenger's seat of Babb's vehicle after Babb exited the vehicle and fled from the scene on foot. Bland rapidly exited his patrol car and approached the passenger side of Babb's vehicle with his gun drawn and pointed at Lee. Bland did not know whether or not Lee was armed because Lee's arms and hands were not visible to Bland (4) Bland gave Lee a verbal command, but Lee did not respond to the command nor did he take any actions indicating that he intended to surrender to the police. Lee was sitting motionless in Babb's car. Bland reached through the passenger side window with one arm while still holding his gun pointed at Lee with the other arm. As he was reaching through the window, Bland's gun discharged, killing Lee and severing part of his own hand. The incident occurred in a matter of a few seconds b. Court’s conclusion (1) In this case, the court said that there was no dispute that the discharge of Bland’s gun was accidental. Even though others could argue that a reasonable jury could conclude otherwise, no evidence was presented to suggest that it was purposeful (2) Bland testified in his deposition that he did not intend to shoot Lee, and an expert also concluded that the gun was unintentionally discharged c. Application of Graham factors (1) Ultimately, upon consideration of the Graham factors, the severity of the crime, whether the suspect posed an immediate threat to the safety of the officer or others, and whether the suspect was resisting arrest or attempting to flee, the court held that Bland's actions were reasonable under the Fourth Amendment OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 46 of 126 (2) Babb and Lee were fleeing or evading the police, a felony in Kentucky – they wantonly disobeyed a direction from a police officer to stop their vehicle and created a “substantial risk of serious physical injury or death to a person or property” by leading police officers on a highspeed chase (3) Because the crime involved fleeing from law enforcement, the severity of the crime was great. At the time Bland approached Lee, it was unclear whether or not Lee posed an immediate threat to Bland's safety because Bland could not see Lee's hands and, therefore, could not determine whether or not Lee was armed (4) Finally, while Lee was not resisting arrest or attempting to flee, neither was he complying with Bland's verbal orders. In sum, the Graham factors raise no genuine questions about the reasonableness of Bland's actions (5) At the moment of the incident, it was not unreasonable for Bland to perceive that Lee posed a serious threat to his safety. Therefore, Lee's constitutional rights were not violated and Bland was entitled to qualified immunity 4. Case example Wilson v. Beebe (1985) a. While an officer was attempting to handcuff the arrestee while standing behind him, his revolver, which was cocked, accidentally discharged and struck the suspect in the back, causing injuries to his spine, intestines, and gall bladder, as well as other injuries b. Federal civil rights claims were rejected, but damages were awarded under that state’s negligence law (1) It was a rare instance of a court awarding substantial damages for what was characterized as an “accidental” shooting (2) $2.5 million was awarded to the arrestee for the accidental shooting during his handcuffing OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 47 of 126 E. Failure to protect Question to Class – Could there be any civil liability of police officers who encounter intoxicated people and arguably fail to protect them from harm from themselves and/or others? An example would be encountering a drunken passenger when you have to arrest the driver for OVI. 1. No general duty to protect a. There is no general duty under federal civil rights law to protect individuals against private violence or harm b. Exceptions have been made in some instances where an officer has a person in custody or a state created danger is present Farber (2013a) Deshaney v. Winnebago County Dep't of Social Services (1989) c. Based on this, courts have generally been reluctant to impose broad liability for failure to protect intoxicated persons in ordinary circumstances d. While police departments and individual officers strive to promote public safety, the courts have said that police departments and individual officers are neither the insurers of the public’s safety, nor are they the public’s parents or nannies e. If officers were charged with having to make sure that every intoxicated person walking around was alright, did not walk out into traffic, did not pass out in a vacant lot, or made it home safe and sound at night, it would be impossible for them to do anything else at all f. Realizing this, the circumstances in which courts will impose civil liability for failure to protect intoxicated persons are the relatively rare exception, rather than the rule 2. Custody and detention a. When people are in custody, and accordingly dependent on officers to keep them safe from harm when they are restrained or unable to protect themselves, there is an inherent duty to keep them safe b. This duty to keep them safe is not absolute or unlimited OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 48 of 126 c. In one case, during a concert, police officers arrested an intoxicated man for refusing to leave when asked to do so. The man was handcuffed and remained standing while one of the officers filled out some paperwork. The man suddenly bolted for a nearby river and the officers began to chase him. The man jumped into the water, immediately disappeared into it, and did not resurface Hermann v. Cook (2004) (1) The water was approximately ten feet deep, muddy, and dark with debris present (2) One of the officers radioed for EMS and the Fire and Rescue dive team (3) Two of the officers present did not consider themselves good swimmers, and a third officer, who initially took off his jacket to prepare to jump into the water, reconsidered, and decided that doing so would have been “foolish and dangerous” (4) The court found that there was no clearly established constitutional due process right for an escaping arrestee to be rescued under these circumstances; the officers were entitled to qualified immunity 3. State created danger Farber (2013a) a. Courts have been open to the concept of imposing liability on officers when some affirmative act of theirs arguably puts an intoxicated person in a more dangerous position than they otherwise would have been (1) In one case, officers faced liability for injuries an intoxicated man taken into custody suffered when the officers subsequently released him by the side of a busy highway, at night, and the man was struck by a car. Davis v. Brady (1998) (2) It was arguably where the officers released the man, knowing he was intoxicated, that put the man in danger of being physically harmed b. In another case, following the death of a spectator of a drag race on a public street, a 1983 action was brought against police officers who arrived at the scene before the race, as well as against the city, for alleged violations of the spectator’s substantive due process rights resulting from the officers’ misconduct in allowing the race to continue Jones v. Reynolds (2006) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 49 of 126 (1) The court found that the officers’ failure to stop the drag race on a public street did not amount to an affirmative act and (2) The officers’ failure to stop the drag race did not specifically place the spectator at risk of danger c. In another case, an Ohio State Highway Patrol trooper was found to have acted reasonably and appropriately given the circumstances known to him and, therefore, did not breach any duty to the passenger of the vehicle when the trooper arrested the driver for driving under the influence and left the passenger to her own devices on the roadway Adkins v. Ohio State Hwy. Patrol (2011) (1) The passenger was later fatally injured when struck by another vehicle on the roadway (2) The trooper testified that he “smelled no odor of an alcoholic beverage” on the passenger and saw no reason to think the passenger was intoxicated, that he left the passenger in an area he believed to be “a safe location, with lighted sidewalks, streetlights, and establishments open,” and that passenger indicated to him that she would call her daughter to pick her up 4. The physically ill Adkins v. Ohio State Hwy. Patrol (2011) Farber (2013b) a. Police officers are first responders and, despite the fact that their primary role is not to render medical assistance to others, they inevitably run into individuals who are seriously ill b. A frequently recurring problem in this context are circumstances in which officers encounter someone having a major health crisis that they mistakenly diagnose as something else (e.g., intoxication) and act in response to the misperceived circumstances c. While the end result may be tragic, courts will not impose liability on officers who act upon what they reasonably thought they knew d. However, when responding to a known medical crisis, a failure of officers to respond appropriately may result in liability (1) The plaintiff claimed the following OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 50 of 126 (a) Two officers responded to a 911 call indicating that McKenna was having seizures in his home and found the man in his bedroom McKenna v. Edgell (2010) (b) The officers allegedly told him to get dressed, which he started to do, but then he started to lie down again (c) The officers allegedly pulled him up from the ground by his hands and told him to put his pants on (d) They ultimately handcuffed his wrists and ankles when the man began actively struggling with them (2) The officers claimed the following (a) That McKenna was unresponsive to verbal questioning (b) That one of them put a hand on his arm to try to rouse him (c) That when they tried to rouse him, he became aggressive and violent (3) After McKenna was taken to the hospital, the officer searched the house for drugs and ran his license plate (4) The appellate court found that the jury could have reasonably determined that the officer acted in an “objectively law-enforcement rather than medicalresponse capacity,” and affirmed the denial of qualified immunity e. Estate of Hill v. Miracle Estate of Hill v. Miracle (2017) (1) Corey Hill suffered a diabetic emergency in his home due to his low blood-sugar level. Paramedics were dispatched to Hill's home at 3:20 p.m. after Hill's girlfriend called 911 for an ambulance (2) The paramedics proceeded to the bedroom where Hill was lying down. Despite finding Hill very disoriented, the paramedics introduced themselves and tried to explain that they needed to check his blood-sugar level OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 51 of 126 (3) Paramedics attempted to prick Hill's finger for this purpose, but an agitated and combative Hill pulled back from the paramedics. Eventually, they managed to prick Hill's finger (4) Hill's blood-sugar level was extremely low at 38, which is considered a medical emergency and, if left untreated, can lead to prolonged seizure and death (5) Deputy Miracle, who had responded to over a dozen emergency diabetic calls during his career and was, therefore, aware of the disorientating effects of low blood-sugar, arrived on scene after the blood-sugar level was determined. At that time, paramedics were attempting to insert an IV catheter to administer dextrose (6) Hill became increasingly combative in resisting the paramedics' efforts to insert the catheter into his arm. Once the paramedics finally inserted the IV, a disoriented Hill threw a punch at one of the paramedics and ripped the catheter from his arm, causing blood to spray from the vein (7) Miracle, who at that point had not joined in the attempt to physically restrain Hill, ordered Hill to "relax." When Hill continued to kick and swing, Miracle informed Hill that he (Miracle) was going to use his Taser. Miracle then deployed his Taser in drive-stun mode directly to Hill's right thigh (8) After Miracle held the Taser against Hill's thigh for a few seconds, Hill calmed down long enough for paramedics to reestablish the IV catheter and administer dextrose. The paramedics noted Hill "became an angel" and was "very apologetic" after the dextrose kicked in (9) Paramedics rechecked Hill’s blood sugar and performed an electrocardiogram; both tests yielded normal results. Hill advised he was not in pain, but paramedics transferred Hill to the hospital for evaluation. Medical records indicated Hill’s bloodsugar was in normal range and treatment was not needed for the Taser wound OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 52 of 126 (10) Hill filed suit against Miracle stating he suffered burns to his thigh and his diabetes worsened due to this incident. He brought a 1983 claim alleging that Miracle had used excessive force in violation of Hill's Fourth Amendment rights (11) The court ruled in favor of Deputy Miracle, stating where a situation does not fit within the Graham test because the person in question has not committed a crime, is not resisting arrest, and is not directly threatening the officer, the court should ask … (a) Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others? (b) Was some degree of force reasonably necessary to ameliorate the immediate threat? (c) Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)? (12) It is important to note the court also stated “we are not holding that a law enforcement officer is always justified in using a Taser to gain control over a person suffering from a medical emergency. But under the circumstances, Miracle's use of force was objectively reasonable. Four paramedics were unable to physically restrain Hill, whose health was rapidly deteriorating and who was unresponsive to Miracle's command to "relax." We conclude that a reasonable officer on the scene, without "the 20/20 vision of hindsight," would be justified in taking the same actions as Miracle” OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 53 of 126 E V AL U A T I N G U S E O F F O R C E – V I D E O S C E N AR I O S A. This is an OPTIONAL class exercise to conduct, if time permits B. Do not replace other learning activities in this lesson plan with this exercise C. There are eight short video vignettes available in the Additional Resources folder on OHLEG This exercise is optional, but encouraged, if time permits D. The videos are numbered within the file name E. Feel free to use any or all of the videos; the videos are standalone teaching points (i.e., it is not necessary to show all videos to achieve learning) F. Also available in the Additional Resources folder is an Instructor Key to assist in analyzing what is depicted in the videos (based on court decisions and other identified sources) G. If this exercise is utilized, please allow for additional discussion OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 54 of 126 CONCLUSION A. Summarize material B. Practice 1. Distribute practice exercise to students 2. Have students complete exercise 3. Review exercise with students 4. Be available for questions if necessary C. Test/SPOs: To be taken at end of academy OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 55 of 126 W O R K S H E E T # 1 – I R R E L E V AN T F A C T O R S Scenario #1 Officer Hannah had been working as a member of the Summer Safety Initiative when two other officers, who were in an unmarked vehicle, radioed in a suspicious car with a group of people around it and its taillights on. Officer Hannah drove his marked police cruiser into the parking lot, and the suspect moved forward a couple of feet and then stopped. Officer Hannah shined his flashlight in the car and saw four males in the car, including Hayes, who was in the backseat. Officer Hannah saw Hayes lean down and come back up. Officer Baker, who was riding with Officer Hannah, got out of the cruiser and approached. Hayes then exited the rear passenger door. Officer Hannah saw Hayes holding a gun and yelled at him to drop it. Officer Baker yelled “gun” as well, but he was referring to a .380 caliber he found near the center console. Hayes ignored Officer Hannah’s command, turned around, and began to move away. Officer Hannah followed. Officer Hannah noted Hayes was acting oddly, as he kept his weapon down and jogged away. Hannah testified that Hayes slowed down and, turning to his left, turned his gun toward Officer Hannah. 1. If Officer Hannah had shot at Hayes at this point, do you think that Officer Hannah’s shooting should be considered reasonable? Why or why not? Hayes then turned back around and kept jogging. In a darkened area, along the brick wall of an apartment building, Hayes slowed down and began to turn towards the officer in the same manner as he had done seconds earlier. Officer Hannah fired, striking Hayes dead. Officer Hannah searched Hayes’ body for a gun, but did not find one. Officers later found the handgun in some bushes along the route that Hayes had just traveled. 2. Based on the facts given, do you think that Officer Hannah’s shooting should be considered reasonable? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 56 of 126 W O R K S H E E T # 1 – I R R E L E V AN T F A C T O R S ( c o n t . ) Scenario #2 At approximately 9:28 p.m., Officer Schulcz of the Springdale Police Department saw a “Monte Carlo-type vehicle” come speeding out of an apartment complex. The car, driven by Brent Robin Smith, ran a stop sign, and Officer Schulcz gave pursuit. Rather than pulling over, Smith tried to escape and led Officer Schulcz on a chase at speeds up to 90 miles per hour. At one point, Mr. Smith backed up in a field at the edge of an asphalt roadway. His car was spinning its tires and throwing up grass and dirt. Officer Schulcz assumed that Smith was stuck and began to pull his cruiser in front of Mr. Smith’s car. Suddenly, Mr. Smith’s car leaped forward and swerved toward Officer Schulcz’s car. The officer pulled his car to the right to avoid a collision and again tried to position himself in front of Mr. Smith. However, Mr. Smith once more swerved toward the police cruiser. Officer Schulcz allowed Mr. Smith to get in front of him, but told the county dispatcher that Mr. Smith was now wanted for assault on a police officer. After fleeing Officer Schulcz for approximately 2.6 miles, Mr. Smith pulled into a dead-end residential street approximately 15 to 20 feet wide. At the end of the street, Mr. Smith tried to turn his car around on a lawn. Officer Schulcz, attempting to prevent Mr. Smith from escaping, placed his car as close to Mr. Smith’s as possible. Eventually, the cars came nose to nose. A building associated with a swimming pool was behind Mr. Smith’s car and a fence with a gate was on Mr. Smith’s left. Officer Schulcz then got out of his car and moved around its rear, intending to remove Mr. Smith from his car. Suddenly, Mr. Smith backed his car up, then sped forward and crashed into Officer Schulcz’s car. He backed up again and zoomed around the police car, smashing into the fence and gate as he did so. As Mr. Smith’s car drove past, Officer Schulcz pulled his gun and fired one shot at it. The bullet entered the passenger side of the car, pierced the passenger seat, and then struck Mr. Smith in his right side, killing him. The entire incident, beginning with Officer Schulcz’s first sighting of Mr. Smith, lasted about four minutes. It was later determined that Officer Schulcz acted outside of his agency’s policy which forbade officers to fire at moving vehicles unless they were acting in self-defense; it also banned the firing of shots to apprehend someone suspected of a misdemeanor. 1. Based on the information above, do you think that the officer’s actions should be considered reasonable? Why or why not? 2. Does it make any difference that Officer Schulcz was acting outside of his agency’s policy regarding the use of his firearm? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 57 of 126 W O R K S H E E T # 2 – H AN D C U F F I N G ( S P O # 3 ) Scenario #1 Robert Fettes was arrested on what was thought to be a valid warrant. The officer handcuffed him and placed him in the cruiser. Fettes complained that the handcuffs were “much too tight and that they were hurting him.” In response, another officer present asked Fettes if he had any medical problems. Fettes responded that he was 64 years old and had bad knees. According to Fettes, the officer responded, “Don’t worry about it; we have a ten minute drive.” Fettes also said that he told the officer several times that the handcuffs were hurting and, each time, the officer responded with, “Well, you don’t have long, Bub. We only have a 10 minute drive.” When Fettes arrived at the station, a jail officer searched him, and then removed his handcuffs. 1. Based on the facts given, do you think this should be considered reasonable? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 58 of 126 W O R K S H E E T # 2 – H AN D C U F F I N G ( S P O # 3 ) ( c o n t . ) Scenario #2 When an officer began to handcuff David Dixon’s hands behind his back, Dixon informed the officer that he was disabled and asked the officer to handcuff him in front. Dixon suggested that the officer look at his injury and surgery site. (Dixon had obvious severe injuries to his torso). Allegedly, the officer took a cursory look at the injury and made a sarcastic comment about the plaintiff, including that the plaintiff “looked fine sitting on a farm tractor.” Dixon, again, requested that the officer handcuff him in front, but the officer refused and cuffed the arrestee behind his back. Dixon was charged with disorderly conduct, but released on bond, with the charges eventually being dismissed. 1. Based on the facts given, was this considered reasonable? Why or why not? 2. Just because a suspect asks you to cuff him/her in the front, does this mean you have to? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 59 of 126 W O R K S H E E T # 2 – H AN D C U F F I N G ( S P O # 3 ) ( c o n t . ) Scenario #3 Officer James Montana responded to a call regarding a woman, later identified as Mimi Lee, who was seen urinating in a hospital parking lot. Officer Montana followed the woman’s truck out of the parking lot, across the street, and into a Burger King parking lot, where he conducted a traffic stop. Officer Christian Hipp arrived to assist Officer Montana. Lee admitted that she had urinated in the parking lot, but offered the explanation that she was on medication that made it difficult for her to control her bladder. Officer Montana smelled alcohol on Lee’s breath and observed that her eyes were glassy and bloodshot. Suspecting that Lee was intoxicated, Officer Montana asked Lee to perform field sobriety tests, which indicated multiple signs of impairment. Lee took a portable breath test, which registered 0.185 percent blood alcohol content. Officer Montana arrested Lee and handcuffed her. After a less than 10 minute ride to the police station, the officer removed Lee’s handcuffs and sat her down in a chair. Lee stated that while Officer Montana prepared the arrest paperwork, she complained about swelling and red marks on her wrists. She also became agitated and threw some papers on the ground. After she was denied permission to use the bathroom, she rose up and moved towards the door. She was taken to the ground and re-handcuffed. Lee claimed injury to her wrists as a result of the handcuffing, as she later went to the emergency room, received a brace, and had carpal tunnel surgery on both wrists. 1. Based on the facts given, do you think this example of handcuffing constituted excessive force? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 60 of 126 W O R K S H E E T # 3 – T E C H N I Q U E S / P H Y S I C AL F O R C E Scenario #1 Officer Rawson stopped Bozung’s vehicle because Officer Rawson considered the rosary hanging from the rearview mirror to be a vision obstruction. When the vehicle stopped, an unknown driver fled the scene. Officer Rawson pursued the individual, but was unable to apprehend the driver. When Officer Rawson returned to the truck, he observed Bozung, who had moved over into the driver’s seat, slowly driving the vehicle into the parking lot of an apartment complex. According to Officer Rawson, he ordered Bozung to stop the vehicle; Bozung, however, claimed Officer Rawson did not say anything to him nor did he motion for Bozung to stop the vehicle. Either way, once Officer Rawson approached the truck, he made contact with Bozung. In Officer Rawson’s opinion, Bozung was obviously intoxicated, he smelled of alcohol, later registered .18 blood alcohol content, and had urinated himself. Officer Rawson also determined that there was an outstanding misdemeanor warrant for failure to appear. Officer Rawson ordered Bozung to get out of the truck and advised him that he was under arrest. While the version of events varies, Bozung did not comply with the officer’s commands. Bozung had been given a number of opportunities to place his hands behind his back, but he continued to hold onto the bed of the truck. Eventually Officer Rawson used a straight-arm bar take down to force the plaintiff to comply. 1. Based on the facts given, was this considered reasonable? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 61 of 126 W O R K S H E E T # 3 – T E C H N I Q U E S / P H Y S I C AL F O R C E ( c o n t . ) Scenario #2 Officer Raber witnessed McCaig hit someone in the face. When the officer told McCaig that he was under arrest, McCaig raised his hands over his head and then held out his hands to be handcuffed. When the officer told the arrestee to put his right hand behind his back to be handcuffed, McCaig was, allegedly, unable to do so because the officer was still holding his arm. McCaig jerked away when the officer screamed “put your fucking hand behind your back” loudly in his ear. The officer conducted a leg sweep and the arrestee fell to the ground on his back, breaking his wrist. 1. Based on the facts given, do you think this could be considered an excessive use of force? Why or why not? 2. Does it make a difference that McCaig broke his wrist? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 62 of 126 W O R K S H E E T # 3 – T E C H N I Q U E S / P H Y S I C AL F O R C E ( c o n t . ) Scenario #3 Officer Amore saw several minors consume alcohol through the windows of the Meirthew home and got a search warrant. Upon its execution, police found Meirthew herself intoxicated. After being instructed to sit down, Meirthew began walking away from the officers. The officers responded by taking her to the floor and handcuffing her. At the station, officers took her to a cell to be searched. At the wall, Amore stood in close proximity to Meirthew, holding her by the handcuffs on her wrists. At this time, two other officers, in addition to Amore, were present in the booking room. Meirthew kept struggling, including attempting to kick Officer Amore. Officer Amore did not request assistance from his fellow officers when struggling with Meirthew but, instead, utilized a pain compliance technique by lifting Meirthew’s arms, which were handcuffed, such that her elbows were above her head. Officer Amore warned Meirthew that, if she did not comply with his directives, he would take her to the ground. When she refused to comply, the officer used an arm-bar takedown to thrust Meirthew face first to the floor. Meirthew fell, unbraced and uncontrolled, to the floor, hitting her face with the full force of her body. She began bleeding profusely from her face. 1. Based on the facts given, do you think this was reasonable? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 63 of 126 W O R K S H E E T # 4 – I M P AC T W E AP O N S Scenario #1 Troy Baker spent the day drinking alcohol and smoking crack cocaine. After leaving a bar, Baker encountered a drug dealer from whom Baker had previously purchased drugs. The dealer offered to sell Baker crack, but Baker declined because he was already in possession of enough crack. During Baker’s conversation with the drug dealer, Officer Taylor and his partner passed by in a police cruiser. Officer Taylor pulled up next to Baker and asked him to stop, but Baker kept walking. When Officer Taylor opened his car door, Baker took off running and ran for approximately two blocks before hiding in the bushes. According to Baker, when Officer Taylor discovered where he was hiding, Baker came out from the bushes with his arms straight up to indicate that he had surrendered. Officer Taylor, using his baton, hit Baker on the left side of his head, knocking Baker down, and opening a wound that eventually required stitches. 1. Based upon the facts above, do you think the officer’s actions could be considered reasonable? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 64 of 126 W O R K S H E E T # 4 – I M P AC T W E AP O N S ( c o n t . ) Scenario #2 Police were called to assist with a disorderly person at a restaurant parking lot. They saw Jones marching and shouting profanities. Jones weighed 348 pounds and was 5’11”. Jones lunged at an officer and tried to throw a punch. The officers tackled him and drew their batons, warning Jones to put his hands behind his back. Jones did not comply, but struggled aggressively. The officers struck him with a baton using strikes and jabs. The strikes and jabs were directed toward Jones’s non-critical areas (e.g., arms, torso, back, legs). The officers did not hit his head, throat, neck, heart, or groin. Jones refused to obey officers’ orders to put his hands behind his back, instead saying, “No way, no way” and “I’ll take all that. Give it to me.” Within a few minutes, a total of six officers were on the scene and able to handcuff Jones. They realize that Jones was not breathing, but still had a pulse. They summoned firefighters but, despite administering CPR, Jones died. 1. Based upon the facts above, explain if these officers’ actions could be considered reasonable. Why or why not? 2. Does it matter that Jones may have been noncompliant because he was struggling to get up to help him breathe? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 65 of 126 W O R K S H E E T # 5 – C H E M I C AL W E A P O N S ( S P O # 4 ) Scenario #1 Cabaniss spent most of the day drinking until his friend took him outside to sober up. He walked to a neighbor’s house, broke the glass in an outdoor lamp, and lay down in the grass. An officer arrived and tried to talk to him, but Cabaniss spit at him. After a warning, the officer rolled him over, cuffed him, arrested him, and took him to the cruiser. A paramedic arrived, but Cabaniss would not let him touch him. Cabaniss was uncooperative when the officer tried to secure him in a seatbelt, so the officer left him unbelted. As the officer drove away in his cruiser, Cabaniss kept kicking the Plexiglas divider and bashed his head into it. Cabaniss ignored orders to stop, and the officer pepper sprayed him. At the police station, Cabaniss became uncooperative and fell, hitting his head on the concrete. He was taken to the hospital, but died as a result of swelling in the brain. 1. Based on the facts given, do you think the officer’s use of pepper spray on a restrained person in the back seat of his car could be considered reasonable? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 66 of 126 W O R K S H E E T # 5 – C H E M I C AL W E A P O N S ( S P O # 4 ) ( c o n t . ) Scenario #2 Champion, who completely lacked the ability to care for himself due to his autism, was nonresponsive and unable to speak. He relied on a caregiver named Delelys. Upon departing from a Nashville Babies “R” Us store where Delelys had taken Champion and Delelys’ three year old son, Devin, Champion began to have a “behavior.” Delelys had neglected to seatbelt Champion, and he began to move around in the minivan, hitting himself and biting his hand, which was a type of “behavior” he frequently exhibited. Delelys stated that Champion was very agitated and continued to slap his own head harder than usual, and began slapping the top of Devin’s head and shaking Devin’s hand. Delelys stopped the van, fearing that Champion’s behavior would further escalate. Delelys and Champion both exited the van. Champion grabbed Delelys’ right hand and started to rub her hand all over his head, a response which, unbeknownst to Delelys, had helped Champion calm down in the past. Delelys became frightened, broke away, and locked herself in the van. She tried calling the emergency number for the group home that Champion lived in but, after no response, she called 911. Right after calling 911, Officer Miller appeared at the driver-side window. Delelys told Miller that Champion has mental illness, but did not inform her that Champion was nonverbal and nonresponsive. Miller approached Champion, asked for his name, and asked why he was agitated. Champion was hitting and biting himself as he began to approach Miller. Miller told Champion to stop, but Champion kept advancing towards her. Miller walked backwards about 50 feet, with Champion still advancing. When Champion grabbed Miller’s shirt, Miller pushed Champion’s hand away and delivered a short burst of pepper spray to Champion’s face. Champion began to walk away. Three other officers arrived on scene and eventually Champion was handcuffed and hobbled. Witnesses testified that Champion was pepper sprayed again after he was on the ground and restrained. 1. Based on the facts given, do you think the first use of pepper spray could be considered reasonable? Why or why not? 2. Based on the facts given, do you think the second use of pepper spray could be considered reasonable? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 67 of 126 W O R K S H E E T # 6 – E L E C T R I C AL W E AP O N S ( S P O # 5 ) Scenario #1 Hagans smoked crack cocaine and began running around his yard screaming. When Hagans did not obey officers’ commands to stop, they struggled with him on the ground. Hagans was resisting arrest by lying down on the pavement and deliberately locking his arms tightly under his body while kicking and screaming. While Hagans was actively resisting, an officer applied his Taser in the drive-stun mode directly against Hagans. 1. Based upon the facts above, do you think the officer’s actions could be considered reasonable? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 68 of 126 W O R K S H E E T # 6 – E L E C T R I C AL W E AP O N S ( S P O # 5 ) ( c o n t . ) Scenario #2 A police officer parked his car behind a Ford F-150 truck that had crashed into a concrete pillar. Instead of exiting the vehicle when the officer attempted to catch the driver’s attention, the driver accelerated his car while keeping it stationary, creating a plume of smoke with his tires. Once backup arrived, the suspect reached into the backseat, giving officers the impression that he was reaching for a weapon. Finding it necessary to disable the vehicle, the officers used an axe to break the driver’s side window. The suspect felt threatened by the window breaking and began violently thrashing about. The officers determined that, because the suspect was moving around violently, and in order to either extract him or reach in and turn off the car’s ignition, they were going to have to use a Taser on him to contain him and control his muscle movement. The suspect was tased a total of two times. The second time the officers used the Taser, the suspect stopped moving and, in a moan, told the officers to stop. With the suspect no longer moving, one of the officers was able to reach inside and turn off the ignition. 1. Based upon the facts above, do you think these officers’ actions could be considered reasonable? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 69 of 126 W O R K S H E E T # 6 – E L E C T R I C AL W E AP O N S ( S P O # 5 ) ( c o n t . ) Scenario #3 On the afternoon of December 22, 2010, two Hardee’s restaurant patrons called 911, reporting that an apparently intoxicated man was creating a disturbance at Hardee’s. The first caller was hiding in Hardee’s restroom with her child and recounted that the man had fallen over chairs, dropped his coffee, was stumbling around, and using foul language. The surveillance video reveals that the suspect, Brown, also attempted to drink from the soda fountain and climbed over the counter to the employees-only area of the restaurant. Brown has no memory or recollection of what happened at Hardee’s, independent of the surveillance video. Sergeant Weber and Deputy Jeremy Pratt of the Decatur County Sheriff's Department arrived at the scene within several minutes of the 911 calls. When they arrived, Brown was seated on the counter pulling his shirt over his head, and an employee was imploring him to get off the counter. Brown did not respond or move when Weber and Pratt spoke to him. Weber quickly walked behind the counter with his Taser and pulled Brown by his left arm off the counter and immediately discharged the Taser into Brown’s back. Weber claims that he grabbed Brown’s arm and Brown suddenly jumped off the counter, landed on his feet, raised his fists, and stood in a “fighting stance.” Weber stated that only after Brown assumed the fighting stance did he fire the Taser at Brown. The surveillance video shows Brown in a reactive position after being pulled off the counter and he appears to be regaining his footing in the moment prior to being tased, which caused him to fall to the ground. The first Taser cycle lasted five seconds. The Taser was employed in dart mode, which caused Brown to lose control of his muscular function through neuromuscular incapacitation. Brown fell to the floor, face down, and began to state that his blood sugar was low. Weber and Pratt stated that, while Brown was on the floor, he was combative and would not remove his arms from underneath his body to be placed in handcuffs. Brown was then tased a second time for a fivesecond Taser cycle. A moment later, Weber’s Taser discharged a third time for a four-second Taser cycle. There was only one second in between each of the three instances the Taser was discharged. The officers were trained to try to allow the suspect to at least be compliant before firing a second Taser shock. After the tasing, Weber and Pratt handcuffed Brown, lifted him, and took him to the parking lot, where he was placed on the ground and in leg shackles. Brown asserts that the officers then forcibly placed him face down in a police car. Next, Brown was transported to the hospital, where he tested negative for all drugs, and his blood sugar level was found to be less than 34 mg/dL, approximately one-half (½) of the minimum of the normal range, a dangerously low level. Brown was later released from the hospital to his parents' care and was not charged with any criminal offense. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 70 of 126 W O R K S H E E T # 6 – E L E C T R I C AL W E AP O N S ( S P O # 5 ) ( c o n t . ) 1. Based upon the information, do you think the officer’s actions were reasonable? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 71 of 126 W O R K S H E E T # 7 – S T O P P I N G T AC T I C S Scenario #1 Around midnight on August 30, 1991, Buckner and Silver drove Silver's stepfather's motorcycle to the Lil' Orange Market on the Highway 11-E bypass on State Highway 70 in Greeneville, Tennessee, while intoxicated and without helmets. The two boys were observed at the market by Greene County Deputy Sheriff Dale Dodds. Dodds radioed the Greeneville Police Department that he had seen two apparently intoxicated persons, not wearing helmets, on a motorcycle at the Lil' Orange Market. Officer Kilgore proceeded to investigate the call. As the boys left the market, another officer attempted to pull them over by activating his cruiser's blue lights. When Buckner and Silver failed to stop and proceeded to elude the police, a chase ensued up the two northbound lanes of the bypass. Buckner estimates that his speed reached as high as 100 miles per hour during the chase. A third officer, Jeff Craft, observed that Buckner and Silver were not yielding to the pursuing officer's blue lights, and alerted other units near the chase. Kilgore testified that after this call, he heard the motorcycle approaching at what seemed to be a high rate of speed. Kilgore responded by driving his police cruiser across the two southbound lanes of the bypass and onto the median separating the four lane divided thoroughfare, and then parked his 17 foot long cruiser across the two northbound lanes on the bypass on which the boys were proceeding. It is undisputed that the width of the two northbound lanes of the bypass, including the shoulders, was 43.5 feet. Buckner and Silver hit Kilgore’s cruiser shortly thereafter, suffering severe and permanent injuries. The parties contested the circumstances surrounding the collision, particularly the amount of time between Kilgore's placement of the cruiser across the two northbound lanes and the collision. Buckner and Silver alleged that Kilgore pulled across the northbound lanes, without his blue lights operating, just seconds prior to impact and, thereby, failed to give them enough time to either stop or go around the police cruiser safely. An eyewitness, unaffiliated with either of the parties, testified that Kilgore's cruiser was stopped for only approximately two seconds before the crash occurred. Another non-party witness testified that Kilgore's cruiser shot straight out from the Amoco station, across the median, and then there was a flash (meaning the collision). Kilgore, on the other hand, put forth a different version of events. Kilgore admitted in a juvenile proceeding, as well as in his deposition in the case, that he intended to either slow down or stop the boys by establishing the roadblock. He claimed, however, that when he parked the cruiser - with the blue lights flashing - across the two northbound lanes, he had enough time to go around the cruiser and wave his flashlight in an attempt to stop the boys. Kilgore stated that when he realized that the boys were not going to stop, he slid over the hood of the cruiser, got back in, and was attempting to engage the car in reverse when the collision occurred. He further contended that his cruiser should have been visible for approximately 1,500 feet. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 72 of 126 W O R K S H E E T # 7 – S T O P P I N G T AC T I C S ( c o n t . ) 1. Do you think that the court determined Kilgore’s actions as reasonable or unreasonable? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 73 of 126 W O R K S H E E T # 8 – D I M I N I S H E D C A P AC I T Y ( S P O # 6 ) Scenario #1 The deceased, Partee, was acting strangely and his mother tried to have him committed. He couldn’t be involuntarily committed, but the officers checked Partee for outstanding warrants and found a traffic warrant. His mother permitted officers to enter the home she shared with Partee. Officers struggled with Partee in his home and one of them used a vascular neck restraint on the suspect. At the end of the struggle, Partee was no longer breathing and had no pulse. 1. Based on the facts given, do you think the officer’s actions were reasonable? Scenario #2 Mrs. Ziegler’s husband took her to the hospital because she was depressed and was expressing the desire to commit suicide. She arrived at about 8:00 p.m., reporting that she was planning to drive her car into a tree. Around 9:40 p.m., Mrs. Ziegler asked to go outside with her husband. She did not return and, when hospital staff could not locate her, police were notified and sent to her home. Around 11:00 p.m., Mrs. Ziegler reappeared at the hospital and claimed that she had just left the hospital to smoke. The police were notified and presumably told not to go to her home. Upon her return to the hospital, the emergency room nurse determined that Mrs. Ziegler had a medical illness that caused her to pose a risk of serious physical injury to herself or to others within the near future. The nurse filed a mental health petition detailing her findings and gave it to a doctor at the hospital. The doctor met with Mrs. Ziegler and signed the certificate requesting that Mrs. Ziegler be hospitalized because of Mrs. Ziegler’s statements. Sometime after the doctor signed the certificate, Mrs. Ziegler stated that the law did not allow the hospital to hold her, and she announced her intention to leave. She then left. The nurse, acting on the doctor’s instructions, called 911, and asked the police to locate Mrs. Ziegler and transport her back to the hospital because they thought she was suicidal and they had a signed certificate authorizing the action. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 74 of 126 W O R K S H E E T # 8 – D I M I N I S H E D C A P AC I T Y ( S P O # 6 ) ( c o n t . ) Officer Daniel Jonoshies, acting on the dispatcher’s request, took Mrs. Ziegler into police custody “outside her house … on the walkway or driveway connected to the house,” and returned her to the hospital. Upon arriving at the hospital, Officer Jonoshies was given the petition and clinical certificate for Mrs. Ziegler, and it was reiterated to him by the nurse that the hospital wanted her confined there for mental health reasons. Mrs. Ziegler sued claiming that Officer Jonoshies violated her Fourth Amendment rights. 1. Based on the information above, do you think that the officer’s actions were reasonable? Why or why not? 2. Does it make any difference that the officer did not witness any signs of suicidal behavior? 3. How do you think courts evaluate the existence of probable cause? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 75 of 126 W O R K S H E E T # 9 – S U S P E C T AR M E D W I T H A F I R E A R M Scenario #1 Two officers arrested a DUI suspect, handcuffed him, and placed him in the front passenger seat of the police car. As officers were standing outside the vehicle talking, the suspect, still handcuffed, produced a handgun and pointed it in the direction of the officers. Before he fired a shot, the two officers quickly drew their own handguns and fired 22 rounds, fatally wounding the suspect. The district court denied summary judgment for the officers, not because the court believed there was no immediate threat, but because of the contention that they could have responded differently to the threat (e.g., taking evasive action to avoid the danger). 1. Do you agree or disagree with this and why? 2. Do you have to wait until a suspect shoots at you in order to return fire? Explain your answer. 3. Do you think it would make a difference if only 2 shots were fired instead of 22, as happened in this case? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 76 of 126 W O R K S H E E T # 9 – S U S P E C T AR M E D W I T H A F I R E A R M ( c o n t . ) Scenario #2 Police were called to a disturbance involving a man with a gun. Officers arrived on scene and saw a man armed with a shotgun. Ignoring an officer’s command to stop and drop the shotgun, the man ran from the officers with the shotgun still in his hands. After repeated warnings to stop and drop the shotgun were ignored, an officer fired a shot that struck and wounded the suspect. The subsequent lawsuit claimed the officer’s use of deadly force to prevent escape of a fleeing suspect was unconstitutional. 1. Based on the facts given, do you think this could be considered reasonable? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 77 of 126 W O R K S H E E T # 1 0 – S U S P E C T AR M E D W I T H A K N I F E / E D G E D W E AP O N Scenario #1 Detectives were investigating an armed robbery of a pizza delivery person that had occurred that evening. The detectives immediately suspected Brandon McCloud, who lived near the robbery and had admitted in an interview with them some three months earlier to having committed 10 to 12 similar armed robberies – once using a handgun, but in all other cases, using knives. After discovering physical evidence near the scene of the robbery suggestive of the same modus operandi McCloud had admitted using in the earlier robberies, the detectives obtained a warrant at about 3:00 a.m. to search where McCloud lived with his grandmother and uncle. At about 5:00 a.m., after observing activity in the house, the detectives knocked on the front door, advised the uncle that they had a search warrant, and proceeded to conduct a protective sweep of the residence. The uncle did not mention that nephew Brandon McCloud was home. The house was dark, and the detectives proceeded from one room to another with flashlights and firearms drawn. While the detectives say they announced themselves several times as “Cleveland police,” others present at the house did not recall hearing this. As the detectives approached McCloud’s bedroom on the second floor, they found the door closed. They barged into the small bedroom, each taking a position inside the room; they spotted McCloud hiding in the closet. With their flashlights and firearms trained on him, they ordered him to come out of the closet and show his hands. After first hesitating, McCloud turned and came out of the closet, holding a knife in his right hand with the blade pointing upward. (The knife turned out to be a standard steak knife with a serrated edge.) Ignoring their commands to drop the knife, McCloud continued to move quickly toward the detectives. Believing they were threatened with imminent serious bodily harm, both detectives simultaneously opened fire, each striking McCloud with several shots, and killing him instantly. McCloud appears to have been about 5 to 7 feet from the officers at this time, and the entire encounter transpired in a matter of seconds. 1. Based on these facts, do you think the officers had probable cause to believe McCloud posed a threat of serious physical harm to them? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 78 of 126 W O R K S H E E T # 1 0 – S U S P E C T AR M E D W I T H A K N I F E / E D G E D W E AP O N ( c o n t . ) 2. Other than the weapon itself, what other things might be taken into consideration to determine whether or not a suspect with a knife poses a threat of serious physical harm? Scenario #2 Shortly after midnight, Jamie Newcomb entered the 7-Eleven store on Crooks Road, in the City of Troy. Two clerks were on duty in the store at the time, Karen Miller and Ruth Wilkerson. A number of customers were also in the store. After being in the store for a short time, Newcomb went around the sales counter and placed a knife under the smock of Ruth Wilkerson at her back. Newcomb directed the clerks to continue waiting on the customers. For more than one-half hour, Newcomb remained in the store. He directed the clerks to empty the cash registers and the muscular dystrophy contribution jar into paper bags, and demanded that the clerks provide him with a ride away from the store. During this period, Newcomb intermittently held the knife to the backs and throats of the clerks. At some point during the robbery attempt, the Troy Police Department was notified or learned of the robbery. Several officers arrived on the scene and took up positions outside the store. Officer Lyczkowski was positioned at the corner of one of the front windows of the store, and had a limited field of view. Approximately 30 minutes after the first officer arrived on the scene, Newcomb and Ruth Wilkerson moved out from behind the counter. By this time, Newcomb had placed the knife in his back pants pocket. Karen Miller remained behind the counter. Newcomb then moved away from Wilkerson, leaving her alone near the front doors. Since the time the officers arrived on scene, this was the first time Newcomb was at a distance from both clerks. At that point, the order was given for the officers to enter the store and arrest Newcomb. Officers Cole and Lyczkowski, dressed in full uniform, were the first to enter the store. Upon entering, one of the officers shouted “Freeze!” Newcomb responded by throwing a coffee pot at the officers and ran toward the rear of the store. When Newcomb reached the end of the counter, with Officers Cole and Lyczkowski in pursuit, he turned and ran behind the counter. Karen Miller was still behind the counter, having crouched down when the police entered. At this point, Officer Denny had entered the store and was in front of the sales counter. As Newcomb continued to run behind the counter, he either tripped or lunged, and he began to fall to the ground near the position of Karen Miller. Believing that Newcomb's actions were an attempt to harm or capture Karen Miller, Officer Denny, reaching over the sales counter, fired one shot from his service revolver. The shot struck Newcomb in the back of the head, inflicting serious injury. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 79 of 126 W O R K S H E E T # 1 0 – S U S P E C T AR M E D W I T H A K N I F E / E D G E D W E AP O N ( c o n t . ) 1. Based on the information above, do you think that the officer’s actions were reasonable? Why or why not? 2. The suspect claimed that he posed no threat of harm that would justify the use of deadly force because he was just trying to escape. Does this change your answer above? Why or why not? 3. The suspect claimed that he posed no threat of harm, as he was unarmed at the time because the knife wasn’t in his hands. Does this change your answer in number one? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 80 of 126 W O R K S H E E T # 1 0 – S U S P E C T AR M E D W I T H A K N I F E / E D G E D W E AP O N ( c o n t . ) Scenario #3 The Hartford Police Department was telephoned by Shari Heffington, who stated that West was chasing her around the home with a machete. Deputies McDannel and Shaw went to the door of West's home and were met by Shari. Deputies Lux and Craft remained outside the home to secure the perimeter. Shari informed the deputies that West was in the home and threatening her with a knife. Shari escorted the deputies into the living room when West entered the room and advanced with a machete toward Shari and the two deputies. The deputies ordered West to drop the knife several times, but West failed to heed the warnings. When he advanced within a distance of 4 to 6 feet with the machete raised, McDannel fired his weapon and killed West. 1. Based on the information above, do you think that the deputy’s actions were reasonable? Why or why not? 2. The deputies entered the home without a warrant. Do you think that, in this case, a cause of action for unreasonable search and seizure would be sustainable? Explain why or why not. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 81 of 126 W O R K S H E E T # 1 1 – S U S P E C T U S I N G N O N - D E AD L Y O R P E R S O N AL W E AP O N S Scenario #1 Police confronted a man at a shopping mall who was urging his dog to attack people. When the suspect turned his dog loose on the officer, the officer used pepper spray on both the dog and the suspect. The dog retreated, but the suspect attacked the officer with a slab of concrete found nearby. The officer shot and seriously wounded the suspect. 1. Based on the information above, do you think that the officer acted reasonably? Why or why not? Scenario #2 At approximately 9:30 p.m., an officer pulled over Fields because Fields’ vehicle had a defective headlight. The officer learned that Fields had a warrant, and Fields was placed under arrest. The officer was in the process of determining whether he could turn the vehicle over to the passenger (Colston); however, when a backup officer arrived, Colston gave the officer a false name. The officer gave Colston several attempts to give the correct name. The officer asked Colston to get down on his knees. Colston turned and placed his hands above his head, but did not get on his knees. The officer repeated his order. As Colston went to his knees, the officer pulled his baton. Once Colston was on his knees, the officer told Colston to remain still and cross his feet, and Colston complied. Colston then told the officer his real name. The officer told Colston to get on the ground. Colston told officers he would not get on the ground, and the officers pushed him to the ground in an attempt to prevent him from standing up. Colston resisted the officers’ efforts and forced his way to his feet. One officer began striking Colston with his baton and the other officer tried to grab Colston. Colston violently resisted and knocked one officer to the ground with a single hard blow. With one officer down, the other officer struggled to control Colston. Colston struck the other officer in the face and knocked him to the ground. The blow broke the officer’s glasses and dazed him. The first officer regained his feet and charged Colston. Colston again knocked him to the ground, leaving him limp and motionless. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 82 of 126 W O R K S H E E T # 1 1 – S U S P E C T U S I N G N O N - D E AD L Y O R P E R S O N AL W E A P O N S ( c o n t . ) From his prone position on the ground, the officer drew his gun and aimed at Colston who was standing between him and the officer on the ground; the officer fired a shot that missed Colston. Colston turned, stepped over the officer’s outstretched legs, and took about two steps away from the officer but directly towards the patrol car where the officer’s shotgun was located. At this moment, the officer fired twice, hitting Colston in the back of his right arm and his buttocks. 1. Based on the information above, do you think that the officer acted reasonably? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 83 of 126 W O R K S H E E T # 1 1 – S U S P E C T U S I N G N O N - D E AD L Y O R P E R S O N AL W E A P O N S ( c o n t . ) Scenario #3 Officer Causey (34 years old, 5’8” tall, 200 pounds) made a traffic stop on Davenport’s vehicle. Davenport (44 years old, 5’9” tall, 277 pounds) got out of his vehicle and walked toward the officer’s vehicle. Causey got out and repeatedly instructed Davenport to return to his vehicle. Davenport returned to the side of his vehicle, leaned against it, and folded his arms. Causey called for backup and decided to place Davenport in custody due to comments Davenport made, his body language, and because he was doing the opposite of what the officer was requesting. When Causey reached for Davenport, Davenport brushed the officer’s hand away. Causey then decided to use his Taser, but there was no discernible effect on Davenport. Davenport grabbed the Taser wires and took up the slack as he approached Causey. At this time, Officer Pugh arrived. Causey attempted to drive-stun Davenport, but Davenport began punching Causey in the head and torso, knocking him to the ground. Davenport then turned his attention to Officer Pugh (60 years old, about the same size as Causey), striking him three times, and causing him to stumble backwards. As Davenport attempted to strike Pugh for the fourth time, Officer Causey shot Davenport. 1. Based on the facts given, do you think the officer acted reasonably? Why or why not? OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 84 of 126 W O R K S H E E T # 1 2 – F I R E AR M S U S E D T O S T O P V E H I C L E S Scenario #1 Near midnight, a lieutenant with the West Memphis, Arkansas police pulled over a vehicle for having only one operating headlight. Rickard was the driver and Kelly Allen was a passenger in the vehicle. The lieutenant noticed a large basketball sized indention in the windshield. He asked if Rickard had been drinking, and asked him to step out of the car; Rickard drove away instead. The lieutenant gave chase, and five other police cars joined in the pursuit. Their attempt at a “rolling roadblock” failed, and Rickard led police on a high speed car chase, reaching speeds in excess of 100 miles an hour, and passing over two dozen vehicles in the process. Rickard hit a cruiser, spun out into a parking lot, and then resumed moving his car despite his bumper being flush against a patrol car. Officers fired three shots at him. Rickard drove away, almost hitting an officer in the process. As Rickard sped away, the officers fired 12 more shots at him, striking him and his passenger, who both died from a combination of gunshot wounds and car crash injuries. 1. Do you think that the officers’ actions were reasonable? Why or why not? Scenario #2 An officer initiated a traffic stop of a driver, and the driver pulled into a parking lot. The officer parked and exited his patrol car. The driver stopped for about a second before turning around and heading back toward the entrance of the parking lot at a speed of about 5 to 10 miles per hour. Seconds after the car turned around, the officer fired 3 shots at the car from about 3 or 4 feet away. As the car rolled by, and the officer was safely to the side of the vehicle, the officer shot a fourth time, this time through the driver’s side window. The driver died at the hospital. 1. Explain when, under the Fourth Amendment, an officer may be justified in shooting at a moving vehicle. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 85 of 126 W O R K S H E E T # 1 2 – F I R E AR M S U S E D T O S T O P V E H I C L E S ( c o n t . ) 2. Based upon the facts, at what point do you think the officer’s actions would be considered unreasonable? Explain your answer. Scenario #3 A heavily intoxicated suspect led two police officers on a nighttime, lights-off, high-speed chase for seven miles before pulling off on a gravel road. As the officers approached on foot, the subject put his car into reverse and rammed into one of the officer’s cruisers. The officers opened fire and shot the subject. The subject was forcibly removed from his vehicle. 1. Based on the facts given, do you think these actions were reasonable? Why or why not. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 86 of 126 W O R K S H E E T # 1 A – I R R E L E V AN T F AC T O R S – I N S T R U C T O R K E Y Scenario #1 Officer Hannah had been working as a member of the Summer Safety Initiative when two other officers, who were in an unmarked vehicle, radioed in a suspicious car with a group of people around it and its taillights on. Officer Hannah drove his marked police cruiser into the parking lot, and the suspect moved forward a couple of feet and then stopped. Officer Hannah shined his flashlight in the car and saw four males in the car, including Hayes, who was in the backseat. Officer Hannah saw Hayes lean down and come back up. Officer Baker, who was riding with Officer Hannah, got out of the cruiser and approached. Hayes then exited the rear passenger door. Officer Hannah saw Hayes holding a gun and yelled at him to drop it. Officer Baker yelled “gun” as well, but he was referring to a .380 caliber he found near the center console. Hayes ignored Officer Hannah’s command, turned around, and began to move away. Officer Hannah followed. Officer Hannah noted Hayes was acting oddly, as he kept his weapon down and jogged away. Hannah testified that Hayes slowed down and, turning to his left, turned his gun toward Officer Hannah. 1. If Officer Hannah had shot at Hayes at this point, do you think that Officer Hannah’s shooting should be considered reasonable? Why or why not? Possibly, based upon the officer’s articulation as to what he was seeing at that time. He would have had to be able to articulate that he felt his life or the life of another would be in jeopardy if the suspect escaped. Hayes then turned back around and kept jogging. In a darkened area, along the brick wall of an apartment building, Hayes slowed down and began to turn towards the officer in the same manner as he had done seconds earlier. Officer Hannah fired, striking Hayes dead. Officer Hannah searched Hayes’ body for a gun, but did not find one. Officers later found the handgun in some bushes along the route that Hayes had just traveled. 2. Based on the facts given, do you think that Officer Hannah’s shooting should be considered reasonable? Why or why not? Yes. Hannah moved for summary judgment and got it; Hayes’ family appealed. Hannah was an employee of a political subdivision (the Columbus Division of Police) working inside the scope of his employment; he was, therefore, statutorily immune from prosecution unless he acted with malicious purpose, bad faith, or in a wanton or reckless manner (see ORC § 2744.03(A) (6)). It is constitutionally unreasonable for police to shoot an unarmed suspect by shooting him dead. However, where the officer has probable cause to believe the suspect poses a serious threat, it is not unreasonable to prevent escape with deadly force. Reasonableness is assessed in light of all the circumstances the officer was facing at the time. Hannah acted reasonably and within department policy. He saw that Hayes had a gun, saw him slow down and turn it toward Hannah, and had seen him run instead of dropping the weapon as ordered. Hannah believed he still had the gun when he fired; he had probable cause in that belief, and in the shooting. Plaintiffs failed to demonstrate otherwise. Source: Hayes v. City of Columbus (2011) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 87 of 126 W O R K S H E E T # 1 A – I R R E L E V AN T F AC T O R S INSTRUCTOR KEY (cont.) Scenario #2 At approximately 9:28 p.m., Officer Schulcz of the Springdale Police Department saw a “Monte Carlo-type vehicle” come speeding out of an apartment complex. The car, driven by Brent Robin Smith, ran a stop sign, and Officer Schulcz gave pursuit. Rather than pulling over, Smith tried to escape and led Officer Schulcz on a chase at speeds up to 90 miles per hour. At one point, Mr. Smith backed up in a field at the edge of an asphalt roadway. His car was spinning its tires and throwing up grass and dirt. Officer Schulcz assumed that Smith was stuck and began to pull his cruiser in front of Mr. Smith’s car. Suddenly, Mr. Smith’s car leaped forward and swerved toward Officer Schulcz’s car. The officer pulled his car to the right to avoid a collision and again tried to position himself in front of Mr. Smith. However, Mr. Smith once more swerved toward the police cruiser. Officer Schulcz allowed Mr. Smith to get in front of him, but told the county dispatcher that Mr. Smith was now wanted for assault on a police officer. After fleeing Officer Schulcz for approximately 2.6 miles, Mr. Smith pulled into a dead-end residential street approximately 15 to 20 feet wide. At the end of the street, Mr. Smith tried to turn his car around on a lawn. Officer Schulcz, attempting to prevent Mr. Smith from escaping, placed his car as close to Mr. Smith’s as possible. Eventually, the cars came nose to nose. A building associated with a swimming pool was behind Mr. Smith’s car and a fence with a gate was on Mr. Smith’s left. Officer Schulcz then got out of his car and moved around its rear, intending to remove Mr. Smith from his car. Suddenly, Mr. Smith backed his car up, then sped forward and crashed into Officer Schulcz’s car. He backed up again and zoomed around the police car, smashing into the fence and gate as he did so. As Mr. Smith’s car drove past, Officer Schulcz pulled his gun and fired one shot at it. The bullet entered the passenger side of the car, pierced the passenger seat, and then struck Mr. Smith in his right side, killing him. The entire incident, beginning with Officer Schulcz’s first sighting of Mr. Smith, lasted about four minutes. It was later determined that Officer Schulcz acted outside of his agency’s policy which forbade officers to fire at moving vehicles unless they were acting in self-defense; it also banned the firing of shots to apprehend someone suspected of a misdemeanor. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 88 of 126 W O R K S H E E T # 1 A – I R R E L E V AN T F AC T O R S INSTRUCTOR KEY (cont.) 1. Based on the information above, do you think that the officer’s actions should be considered reasonable? Why or why not? The appellate court determined that the lower court did not err in holding that the seizure was not unreasonable as a matter of law, and they affirmed the judgment of the district court. The officer’s actions were considered reasonable – after a dramatic chase, Officer Schulcz appeared to have trapped the suspect at the end of a dark street. Suddenly, Mr. Smith freed his car and began speeding down the street. In an instant, Officer Schulcz had to decide whether to allow his suspect to escape. Officer Schulcz decided to stop him and no rational jury could say he acted unreasonably. Even if there was a roadblock at the end of the street, Officer Schulcz could reasonably believe that Mr. Smith could escape the roadblock, as he had escaped several times previously. In any event, Mr. Smith had freed his car from Officer Schulcz’s attempted blockade and was undoubtedly going to escape from Officer Schulcz, if not the entire police force. Had Mr. Smith proceeded down the street, he posed a major threat to the officers operating the roadblock. Even unarmed, he was not harmless; a car can be a deadly weapon. Officer Schulcz could certainly assume Mr. Smith would not stop at threatening others. 2. Does it make any difference that Officer Schulcz was acting outside of his agency’s policy regarding the use of his firearm? While Officer Schulcz’s actions may have violated his agency’s policies regarding use of force, policy and constitutional standards are separate. A city can choose to hold its officers to a higher standard than required by the Constitution without being subjected to increased civil liability. Source: Smith v. Freland (1992) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 89 of 126 W O R K S H E E T # 2 A – H AN D C U F F I N G ( S P O # 3 ) – I N S T R U C T O R K E Y Scenario #1 Robert Fettes was arrested on what was thought to be a valid warrant. The officer handcuffed him and placed him in the cruiser. Fettes complained that the handcuffs were “much too tight and that they were hurting him.” In response, another officer present asked Fettes if he had any medical problems. Fettes responded that he was 64 years old and had bad knees. According to Fettes, the officer responded, “Don’t worry about it; we have a ten minute drive.” Fettes also said that he told the officer several times that the handcuffs were hurting and, each time, the officer responded with, “Well, you don’t have long, Bub. We only have a 10 minute drive.” When Fettes arrived at the station, a jail officer searched him, and then removed his handcuffs. 1. Based on the facts given, do you think this should be considered reasonable? Why or why not? According to the court, a reasonable officer would not know that the failure to respond to a complaint about tight handcuffs during a 10 minute ride to the police station violates the Constitution. Officers do not have to respond to every utterance of discomfort and make a new judgment if the handcuffs are too tight. Here, the short duration of the trip, adherence to handcuff protocol, and the absence of any egregious, abusive, or malicious conduct supports the reasonableness of the officer’s conduct. Source: Fettes v. Hendershot (2010) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 90 of 126 W O R K S H E E T # 2 A – H AN D C U F F I N G ( S P O # 3 ) INSTRUCTOR KEY (cont.) Scenario #2 When an officer began to handcuff David Dixon’s hands behind his back, Dixon informed the officer that he was disabled and asked the officer to handcuff him in front. Dixon suggested that the officer look at his injury and surgery site. (Dixon had obvious severe injuries to his torso). Allegedly, the officer took a cursory look at the injury and made a sarcastic comment about the plaintiff, including that the plaintiff “looked fine sitting on a farm tractor.” Dixon, again, requested that the officer handcuff him in front, but the officer refused and cuffed the arrestee behind his back. Dixon was charged with disorderly conduct, but released on bond, with the charges eventually being dismissed. 1. Based on the facts given, was this considered reasonable? Why or why not? No. The court in this case held that the Constitution forbade an officer from making a cursory examination of a severe, obvious medical injury and nevertheless choosing to handcuff the arrestee in a manner likely to cause serious harm. Absent exigent circumstances, an officer choosing to handcuff a peaceable arrestee in a manner likely to cause serious harm amounts to excessive force. Source: Dixon v. Donald (2008) 2. Just because a suspect asks you to cuff him/her in the front, does this mean you have to? Why or why not? No. Statements made by suspects claiming at the time of their arrest to have pre-existing injuries are uttered by many suspects who, if given the choice, would prefer not to be handcuffed at all and, if they must be restrained in that manner, would prefer that the handcuffs be in front. Source: Rodriguez v. Farrell (2002) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 91 of 126 W O R K S H E E T # 2 A – H AN D C U F F I N G ( S P O # 3 ) INSTRUCTOR KEY (cont.) Scenario #3 Officer James Montana responded to a call regarding a woman, later identified as Mimi Lee, who was seen urinating in a hospital parking lot. Officer Montana followed the woman’s truck out of the parking lot, across the street, and into a Burger King parking lot, where he conducted a traffic stop. Officer Christian Hipp arrived to assist Officer Montana. Lee admitted that she had urinated in the parking lot, but offered the explanation that she was on medication that made it difficult for her to control her bladder. Officer Montana smelled alcohol on Lee’s breath and observed that her eyes were glassy and bloodshot. Suspecting that Lee was intoxicated, Officer Montana asked Lee to perform field sobriety tests, which indicated multiple signs of impairment. Lee took a portable breath test, which registered 0.185 percent blood alcohol content. Officer Montana arrested Lee and handcuffed her. After a less than 10 minute ride to the police station, the officer removed Lee’s handcuffs and sat her down in a chair. Lee stated that while Officer Montana prepared the arrest paperwork, she complained about swelling and red marks on her wrists. She also became agitated and threw some papers on the ground. After she was denied permission to use the bathroom, she rose up and moved towards the door. She was taken to the ground and re-handcuffed. Lee claimed injury to her wrists as a result of the handcuffing, as she later went to the emergency room, received a brace, and had carpal tunnel surgery on both wrists. 1. Based on the facts given, do you think this example of handcuffing constituted excessive force? Why or why not? The appellate court determined that the officers were entitled to qualified immunity on the handcuffing claim because, even assuming that the arrestee complained that the handcuffs were too tight, that the officers ignored those complaints, and that an injury to her wrists resulted from the handcuffing, no reasonable officer would have known that ignoring her complaints during the short drive to the police station was unlawful. In the excessive force context regarding qualified immunity, there is no clearly established constitutional requirement obligating officers to stop and investigate each and every utterance of discomfort. Source: Lee v. City of Norwalk, Ohio (2013) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 92 of 126 W O R K S H E E T # 3 A – T E C H N I Q U E S / P H Y S I C AL F O R C E – INSTRUCTOR KEY Scenario #1 Officer Rawson stopped Bozung’s vehicle because Officer Rawson considered the rosary hanging from the rearview mirror to be a vision obstruction. When the vehicle stopped, an unknown driver fled the scene. Officer Rawson pursued the individual, but was unable to apprehend the driver. When Officer Rawson returned to the truck, he observed Bozung, who had moved over into the driver’s seat, slowly driving the vehicle into the parking lot of an apartment complex. According to Officer Rawson, he ordered Bozung to stop the vehicle; Bozung, however, claimed Officer Rawson did not say anything to him nor did he motion for Bozung to stop the vehicle. Either way, once Officer Rawson approached the truck, he made contact with Bozung. In Officer Rawson’s opinion, Bozung was obviously intoxicated, he smelled of alcohol, later registered .18 blood alcohol content, and had urinated himself. Officer Rawson also determined that there was an outstanding misdemeanor warrant for failure to appear. Officer Rawson ordered Bozung to get out of the truck and advised him that he was under arrest. While the version of events varies, Bozung did not comply with the officer’s commands. Bozung had been given a number of opportunities to place his hands behind his back, but he continued to hold onto the bed of the truck. Eventually Officer Rawson used a straight-arm bar take down to force the plaintiff to comply. 1. Based on the facts given, was this considered reasonable? Why or why not? The court found it was reasonable for the officer to employ a “straight-arm bar takedown” to neutralize the plaintiff when the officer knew plaintiff had been drinking, knew the driver of the vehicle had fled the scene when the car was pulled over, and knew that there was a warrant for plaintiff’s arrest. Officer also did not have an opportunity to search the vehicle or the plaintiff prior to the takedown. The court also found that Bozung had an ample amount of time to comply with the officer’s orders to place his hands behind his back. In order to demonstrate excessive force, a plaintiff must demonstrate (1) that a seizure occurred and (2) that the force used in effecting that seizure was objectively unreasonable. Source: Bozung v. Rawson (2011) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 93 of 126 W O R K S H E E T # 3 A – T E C H N I Q U E S / P H Y S I C AL F O R C E – INSTRUCTOR KEY (cont.) Scenario #2 Officer Raber witnessed McCaig hit someone in the face. When the officer told McCaig that he was under arrest, McCaig raised his hands over his head and then held out his hands to be handcuffed. When the officer told the arrestee to put his right hand behind his back to be handcuffed, McCaig was, allegedly, unable to do so because the officer was still holding his arm. McCaig jerked away when the officer screamed “put your fucking hand behind your back” loudly in his ear. The officer conducted a leg sweep and the arrestee fell to the ground on his back, breaking his wrist. 1. Based on the facts given, do you think this could be considered an excessive use of force? Why or why not? The appellate court determined that the officer was properly denied summary judgment based on qualified immunity as to the arrestee's excessive force claim because (1) a reasonable jury could find that the officer's use of a takedown maneuver was not objectively reasonable since the arrestee was unarmed, and, in his version of the facts, he made no aggressive gestures or statements, attempted to cooperate, offered no resistance, and stated that he would "go easy," and (2) it was clearly established that the use of force on a non-resistant or passively-resistant individual could constitute excessive force. Cases in the Sixth Circuit clearly establish the right of persons who pose no safety risk to the police to be free from gratuitous violence during arrest. The court consistently has held that various types of force applied after the subduing of a suspect are unreasonable and a violation of a clearly established right. Moreover, the court's prior opinions clearly establish that it is unreasonable to use significant force on a restrained subject, even if some level of passive resistance is presented. When a suspect refuses to follow officer orders but otherwise poses no safety threat, use of significant force is unreasonable. It has been clearly established that the use of force on a non-resistant or passively-resistant individual may constitute excessive force. 2. Does it make a difference that McCaig broke his wrist? No. The outcome of the force makes no difference in whether the force was reasonable. Source: McCaig v. Raber (2013) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 94 of 126 W O R K S H E E T # 3 A – T E C H N I Q U E S / P H Y S I C AL F O R C E – INSTRUCTOR KEY (cont.) Scenario #3 Officer Amore saw several minors consume alcohol through the windows of the Meirthew home and got a search warrant. Upon its execution, police found Meirthew herself intoxicated. After being instructed to sit down, Meirthew began walking away from the officers. The officers responded by taking her to the floor and handcuffing her. At the station, officers took her to a cell to be searched. At the wall, Amore stood in close proximity to Meirthew, holding her by the handcuffs on her wrists. At this time, two other officers, in addition to Amore, were present in the booking room. Meirthew kept struggling, including attempting to kick Officer Amore. Officer Amore did not request assistance from his fellow officers when struggling with Meirthew but, instead, utilized a pain compliance technique by lifting Meirthew’s arms, which were handcuffed, such that her elbows were above her head. Officer Amore warned Meirthew that, if she did not comply with his directives (to separate her feet), he would take her to the ground. When she refused to comply, the officer used an arm-bar takedown to thrust Meirthew face first to the floor. Meirthew fell, unbraced and uncontrolled, to the floor, hitting her face with the full force of her body. She began bleeding profusely from her face. 1. Based on the facts given, do you think this was reasonable? Why or why not? Plaintiff set forth sufficient admissible evidence to establish a genuine issue of material fact regarding the reasonableness of defendant's use of force. Viewing the record in the light most favorable to plaintiff, the court found that defendant utilized the arm-bar takedown when plaintiff was unarmed, handcuffed, surrounded by police officers, physically restrained, and located in the secure confines of a police station. While the plaintiff was non-compliant in refusing to spread her feet, the court found that a reasonable jury could find that plaintiff posed no danger, and the use of the arm-bar takedown was unreasonable under the circumstances – the underlying crimes allegedly committed by plaintiff were not severe, she did not pose an immediate threat, and she was not attempting to resist or evade arrest by flight. Source: Meirthew v. Amore (2011) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 95 of 126 W O R K S H E E T # 4 A – I M P AC T W E A P O N S – I N S T R U C T O R K E Y Scenario #1 Troy Baker spent the day drinking alcohol and smoking crack cocaine. After leaving a bar, Baker encountered a drug dealer from whom Baker had previously purchased drugs. The dealer offered to sell Baker crack, but Baker declined because he was already in possession of enough crack. During Baker’s conversation with the drug dealer, Officer Taylor and his partner passed by in a police cruiser. Officer Taylor pulled up next to Baker and asked him to stop, but Baker kept walking. When Officer Taylor opened his car door, Baker took off running and ran for approximately two blocks before hiding in the bushes. According to Baker, when Officer Taylor discovered where he was hiding, Baker came out from the bushes with his arms straight up to indicate that he had surrendered. Officer Taylor, using his baton, hit Baker on the left side of his head, knocking Baker down, and opening a wound that eventually required stitches. 1. Based upon the facts above, do you think the officer’s actions could be considered reasonable? Why or why not? These actions would be considered unreasonable because when a suspect has surrendered before being struck by a baton, a reasonable jury could conclude that an officer’s strike to the suspect’s head was unjustified and excessive. Source: Baker v. City of Hamilton (2006) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 96 of 126 W O R K S H E E T # 4 A – I M P AC T W E A P O N S – I N S T R U C T O R K E Y (cont.) Scenario #2 Police were called to assist with a disorderly person at a restaurant parking lot. They saw Jones marching and shouting profanities. Jones weighed 348 pounds and was 5’11”. Jones lunged at an officer and tried to throw a punch. The officers tackled him and drew their batons, warning Jones to put his hands behind his back. Jones did not comply, but struggled aggressively. The officers struck him with a baton using strikes and jabs. The strikes and jabs were directed toward Jones’s non-critical areas (e.g., arms, torso, back, legs). The officers did not hit his head, throat, neck, heart, or groin. Jones refused to obey officers’ orders to put his hands behind his back, instead saying, “No way, no way” and “I’ll take all that. Give it to me.” Within a few minutes, a total of six officers were on the scene and able to handcuff Jones. They realize that Jones was not breathing, but still had a pulse. They summoned firefighters but, despite administering CPR, Jones died. 1. Based upon the facts above, explain if these officers’ actions could be considered reasonable. Why or why not? Yes, the actions could be considered reasonable because at no time did Jones comply with the officers’ orders, and strikes were delivered to non-critical areas of his body. 2. Does it matter that Jones may have been noncompliant because he was struggling to get up to help him breathe? In this specific case, an objectively reasonable officer could not have discerned whether Jones resisted in an attempt to breath or in defiance of commands. Source: Jones v. City of Cincinnati (2012) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 97 of 126 W O R K S H E E T # 5 A – C H E M I C AL W E AP O N S ( S P O # 4 ) – INSTRUCTOR KEY Scenario #1 Cabaniss spent most of the day drinking until his friend took him outside to sober up. He walked to a neighbor’s house, broke the glass in an outdoor lamp, and lay down in the grass. An officer arrived and tried to talk to him, but Cabaniss spit at him. After a warning, the officer rolled him over, cuffed him, arrested him, and took him to the cruiser. A paramedic arrived, but Cabaniss would not let him touch him. Cabaniss was uncooperative when the officer tried to secure him in a seatbelt, so the officer left him unbelted. As the officer drove away in his cruiser, Cabaniss kept kicking the Plexiglas divider and bashed his head into it. Cabaniss ignored orders to stop, and the officer pepper sprayed him. At the police station, Cabaniss became uncooperative and fell, hitting his head on the concrete. He was taken to the hospital, but died as a result of swelling in the brain. 1. Based on the facts given, do you think the officer’s use of pepper spray on a restrained person in the back seat of his car could be considered reasonable? Why or why not? Courts have frequently used this case to stress to officers that they should not generally use force against prisoners in the back of cruisers/wagons. In this instance, the Sixth Circuit Court of Appeals stated these common sense rules about using force on people in cruisers: As a general rule, we have held that the use of pepper spray is excessive force when the detainee ‘surrenders, is secured, and is not acting violently, and there is no threat to the officers or anyone else.’ The logical corollary to this rule is that there is a very limited class of circumstances when the use of pepper spray is proper, including where a detainee is unsecured, acting violently, and posing a threat to himself or others. In this case, the court found that Cabaniss had been uncooperative with Officer Carlton when he tried to secure him in a seatbelt, and thus, was unsecured in the backseat of the cruiser. Further, Cabaniss was kicking the Plexiglas and beating his head against it, exhibiting signs that he presented a danger to himself and that he might be a flight risk. Notably, Cabaniss’s kicks had been described by Officer Carlton as “wimpy.” Thus, viewing these facts in the light most favorable to Cabaniss, the court assumed that Cabaniss's kicks were incapable of doing any real damage. However, the court also found that, at most, this undermined only the contention that Cabaniss posed a flight risk - he was still unsecured in the backseat and was banging his head repeatedly on the glass, posing a danger to himself. Officer Carlton warned him repeatedly to stop and he would not do so. Taken together with the information Carlton had received earlier that Cabaniss's friends suspected he could be suicidal, the court concluded that Officer Carlton had every reason to fear that Cabaniss posed a real threat to his own safety and needed to be subdued. The court found that these facts fell well within the class of situations in which the court had previously held that the use of pepper spray, even when a person is in a cruiser, was reasonably justified. Source: Cabaniss v. City of Riverside (2007) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 98 of 126 W O R K S H E E T # 5 A – C H E M I C AL W E AP O N S ( S P O # 4 ) INSTRUCTOR KEY (cont.) Scenario #2 Champion, who completely lacked the ability to care for himself due to his autism, was nonresponsive and unable to speak. He relied on a caregiver named Delelys. Upon departing from a Nashville Babies “R” Us store where Delelys had taken Champion and Delelys’ three year old son, Devin, Champion began to have a “behavior.” Delelys had neglected to seatbelt Champion, and he began to move around in the minivan, hitting himself and biting his hand, which was a type of “behavior” he frequently exhibited. Delelys stated that Champion was very agitated and continued to slap his own head harder than usual, and began slapping the top of Devin’s head and shaking Devin’s hand. Delelys stopped the van, fearing that Champion’s behavior would further escalate. Delelys and Champion both exited the van. Champion grabbed Delelys’ right hand and started to rub her hand all over his head, a response which, unbeknownst to Delelys, had helped Champion calm down in the past. Delelys became frightened, broke away, and locked herself in the van. She tried calling the emergency number for the group home that Champion lived in but, after no response, she called 911. Right after calling 911, Officer Miller appeared at the driver-side window. Delelys told Miller that Champion has mental illness, but did not inform her that Champion was nonverbal and nonresponsive. Miller approached Champion, asked for his name, and asked why he was agitated. Champion was hitting and biting himself as he began to approach Miller. Miller told Champion to stop, but Champion kept advancing towards her. Miller walked backwards about 50 feet, with Champion still advancing. When Champion grabbed Miller’s shirt, Miller pushed Champion’s hand away and delivered a short burst of pepper spray to Champion’s face. Champion began to walk away. Three other officers arrived on scene and eventually Champion was handcuffed and hobbled. Witnesses testified that Champion was pepper sprayed again after he was on the ground and restrained. 1. Based on the facts given, do you think the first use of pepper spray could be considered reasonable? Why or why not? Student answers may vary, but in this case, the court found that the first use of pepper spray could have been considered reasonable because the officer was basing its use on the facts known to her (i.e., that she was giving commands, and the suspect was not responsive and continued to approach her). OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 99 of 126 W O R K S H E E T # 5 A – C H E M I C AL W E AP O N S ( S P O # 4 ) INSTRUCTOR KEY (cont.) 2. Based on the facts given, do you think the second use of pepper spray could be considered reasonable? Why or why not? In this case, the court found that a reasonable person would know that spraying mace on a blinded and incapacitated person would violate the right to be free from excessive force. Courts have consistently concluded that using pepper spray is excessive force in cases where the arrestee surrenders, is secured, is not acting violently, and there is no threat to the officers or anyone else. Source: Champion v. Outlook Nashville, Inc. (2004) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 100 of 126 W O R K S H E E T # 6 A – E L E C T R I C AL W E AP O N S ( S P O # 5 ) – INSTRUCTOR KEY Scenario #1 Hagans smoked crack cocaine and began running around his yard screaming. When Hagans did not obey officers’ commands to stop, they struggled with him on the ground. Hagans was resisting arrest by lying down on the pavement and deliberately locking his arms tightly under his body while kicking and screaming. While Hagans was actively resisting, an officer applied his Taser in the drive-stun mode directly against Hagans. 1. Based upon the facts above, do you think the officer’s actions could be considered reasonable? Why or why not? The appellate court determined that the officer was entitled to qualified immunity as to the excessive force claim because the suspect was out of control and continued to forcefully resist arrest. Statutory immunity under Ohio Revised Code Ann. § 2744.03(A)(6)(b) applied to the assault claim because the officer did not violate a clearly established right, and nothing else showed that he otherwise acted with malicious purpose, in bad faith, or in a wanton or reckless character. If a suspect actively resists arrest and refuses to be handcuffed, officers do not violate the Fourth Amendment by using a Taser to subdue him. A suspect's active resistance marks the line between reasonable and unreasonable tasing in other circuits. Source: Hagans v. Franklin County Sheriff's Office (2012) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 101 of 126 W O R K S H E E T # 6 A – E L E C T R I C AL W E AP O N S ( S P O # 5 ) – INSTRUCTOR KEY (cont.) Scenario #2 A police officer parked his car behind a Ford F-150 truck that had crashed into a concrete pillar. Instead of exiting the vehicle when the officer attempted to catch the driver’s attention, the driver accelerated his car while keeping it stationary, creating a plume of smoke with his tires. Once backup arrived, the suspect reached into the backseat, giving officers the impression that he was reaching for a weapon. Finding it necessary to disable the vehicle, the officers used an axe to break the driver’s side window. The suspect felt threatened by the window breaking and began violently thrashing about. The officers determined that, because the suspect was moving around violently, and in order to either extract him or reach in and turn off the car’s ignition, they were going to have to use a Taser on him to contain him and control his muscle movement. The suspect was tased a total of two times. The second time the officers used the Taser, the suspect stopped moving and, in a moan, told the officers to stop. With the suspect no longer moving, one of the officers was able to reach inside and turn off the ignition. 1. Based upon the facts above, do you think these officers’ actions could be considered reasonable? Why or why not? The court found the following: whether the use of a Taser was reasonable under the circumstances of this case turned on the issue of whether it was necessary for the law enforcement officers to intervene in order to bring the situation they faced under control, even if the purpose of the intervention was not to make an arrest. The court found that the answer to that question was clearly yes. Both of the officers had testified to their genuine fear that the suspect would eventually succeed in dislodging the truck, thereby putting the officers and other individuals on the road in grave danger. Indeed, safety concerns led the officers to stand to the truck's side, rather than behind it. The danger posed by the truck's spinning tires was also the reason that it was determined not to disable the truck by flattening its tires. The court stated that it cannot say that it was unreasonable for the officers to conclude that the use of a Taser on the suspect was the best thing that [they] could do in that situation in order to control his muscle movement so [they] could either extract him or somebody could reach in to turn the ignition off to try to get control of the vehicle. Source: Foos v. City of Delaware (2012) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 102 of 126 W O R K S H E E T # 6 A – E L E C T R I C AL W E AP O N S ( S P O # 5 ) – INSTRUCTOR KEY (cont.) Scenario #3 On the afternoon of December 22, 2010, two Hardee’s restaurant patrons called 911, reporting that an apparently intoxicated man was creating a disturbance at Hardee’s. The first caller was hiding in Hardee’s restroom with her child and recounted that the man had fallen over chairs, dropped his coffee, was stumbling around, and using foul language. The surveillance video reveals that the suspect, Brown, also attempted to drink from the soda fountain and climbed over the counter to the employees-only area of the restaurant. Brown has no memory or recollection of what happened at Hardee’s, independent of the surveillance video. Sergeant Weber and Deputy Jeremy Pratt of the Decatur County Sheriff's Department arrived at the scene within several minutes of the 911 calls. When they arrived, Brown was seated on the counter pulling his shirt over his head, and an employee was imploring him to get off the counter. Brown did not respond or move when Weber and Pratt spoke to him. Weber quickly walked behind the counter with his Taser and pulled Brown by his left arm off the counter and immediately discharged the Taser into Brown’s back. Weber claims that he grabbed Brown’s arm and Brown suddenly jumped off the counter, landed on his feet, raised his fists, and stood in a “fighting stance.” Weber stated that only after Brown assumed the fighting stance did he fire the Taser at Brown. The surveillance video shows Brown in a reactive position after being pulled off the counter and he appears to be regaining his footing in the moment prior to being tased, which caused him to fall to the ground. The first Taser cycle lasted five seconds. The Taser was employed in dart mode, which caused Brown to lose control of his muscular function through neuromuscular incapacitation. Brown fell to the floor, face down, and began to state that his blood sugar was low. Weber and Pratt stated that, while Brown was on the floor, he was combative and would not remove his arms from underneath his body to be placed in handcuffs. Brown was then tased a second time for a fivesecond Taser cycle. A moment later, Weber’s Taser discharged a third time for a four-second Taser cycle. There was only one second in between each of the three instances the Taser was discharged. The officers were trained to try to allow the suspect to at least be compliant before firing a second Taser shock. After the tasing, Weber and Pratt handcuffed Brown, lifted him, and took him to the parking lot, where he was placed on the ground and in leg shackles. Brown asserts that the officers then forcibly placed him face down in a police car. Next, Brown was transported to the hospital, where he tested negative for all drugs, and his blood sugar level was found to be less than 34 mg/dL, approximately one-half (½) of the minimum of the normal range, a dangerously low level. Brown was later released from the hospital to his parents' care and was not charged with any criminal offense. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 103 of 126 W O R K S H E E T # 6 A – E L E C T R I C AL W E AP O N S ( S P O # 5 ) INSTRUCTOR KEY (cont.) 1. Based upon the information, do you think the officer’s actions were reasonable? Why or why not? The officer was properly denied summary judgment based on qualified immunity as to the arrestee's Fourth Amendment excessive force claim because the officer discharged the Taser 3 times within 16 seconds. A genuine issue of material fact existed as to whether the arrestee actively resisted arrest by taking a "fighting stance," as the arrestee allegedly posed little to no immediate threat to the safety of the officers or others (i.e., he was unarmed, he was not making verbal threats, and he was not attempting to evade arrest by flight). If a suspect actively resists arrest and refuses to be handcuffed, officers do not violate the Fourth Amendment by using a Taser to subdue him. Tasing a suspect is not excessive force when the suspect refuses to move his hands from under his body so that officers can handcuff him. If one party's version of the facts is blatantly contradicted by the record, such that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. Source: Brown v. Weber (2014) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 104 of 126 WORKSHEET #7A – STOPPING TACTICS – INSTRUCTOR KEY Scenario #1 Around midnight on August 30, 1991, Buckner and Silver drove Silver's stepfather's motorcycle to the Lil' Orange Market on the Highway 11-E bypass on State Highway 70 in Greeneville, Tennessee, while intoxicated and without helmets. The two boys were observed at the market by Greene County Deputy Sheriff Dale Dodds. Dodds radioed the Greeneville Police Department that he had seen two apparently intoxicated persons, not wearing helmets, on a motorcycle at the Lil' Orange Market. Officer Kilgore proceeded to investigate the call. As the boys left the market, another officer attempted to pull them over by activating his cruiser's blue lights. When Buckner and Silver failed to stop and proceeded to elude the police, a chase ensued up the two northbound lanes of the bypass. Buckner estimates that his speed reached as high as 100 miles per hour during the chase. A third officer, Jeff Craft, observed that Buckner and Silver were not yielding to the pursuing officer's blue lights, and alerted other units near the chase. Kilgore testified that after this call, he heard the motorcycle approaching at what seemed to be a high rate of speed. Kilgore responded by driving his police cruiser across the two southbound lanes of the bypass and onto the median separating the four lane divided thoroughfare, and then parked his 17 foot long cruiser across the two northbound lanes on the bypass on which the boys were proceeding. It is undisputed that the width of the two northbound lanes of the bypass, including the shoulders, was 43.5 feet. Buckner and Silver hit Kilgore’s cruiser shortly thereafter, suffering severe and permanent injuries. The parties contested the circumstances surrounding the collision, particularly the amount of time between Kilgore's placement of the cruiser across the two northbound lanes and the collision. Buckner and Silver alleged that Kilgore pulled across the northbound lanes, without his blue lights operating, just seconds prior to impact and, thereby, failed to give them enough time to either stop or go around the police cruiser safely. An eyewitness, unaffiliated with either of the parties, testified that Kilgore's cruiser was stopped for only approximately two seconds before the crash occurred. Another non-party witness testified that Kilgore's cruiser shot straight out from the Amoco station, across the median, and then there was a flash (meaning the collision). Kilgore, on the other hand, put forth a different version of events. Kilgore admitted in a juvenile proceeding, as well as in his deposition in the case, that he intended to either slow down or stop the boys by establishing the roadblock. He claimed, however, that when he parked the cruiser - with the blue lights flashing - across the two northbound lanes, he had enough time to go around the cruiser and wave his flashlight in an attempt to stop the boys. Kilgore stated that when he realized that the boys were not going to stop, he slid over the hood of the cruiser, got back in, and was attempting to engage the car in reverse when the collision occurred. He further contended that his cruiser should have been visible for approximately 1,500 feet. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 105 of 126 WORKSHEET #7A – STOPPING TACTICS – INSTRUCTOR KEY (cont.) 1. Do you think that the court determined Kilgore’s actions as reasonable or unreasonable? Why or why not? The court determined that the officer clearly violated the clearly established right under Brower (1989) when he pulled his squad car onto a highway with knowledge or having reason to know that the approaching motorcyclist would not have time or the ability to stop or otherwise safely avoid collision with the car. Source: Buckner v. Kilgore (1994) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 106 of 126 W O R K S H E E T # 8 A – D I M I N I S H E D C AP A C I T Y ( S P O # 6 ) – INSTRUCTOR KEY Scenario #1 The deceased, Partee, was acting strangely and his mother tried to have him committed. He couldn’t be involuntarily committed, but the officers checked Partee for outstanding warrants and found a traffic warrant. His mother permitted officers to enter the home she shared with Partee. Officers struggled with Partee in his home and one of them used a vascular neck restraint on the suspect. At the end of the struggle, Partee was no longer breathing and had no pulse. 1. Based on the facts given, do you think the officer’s actions were reasonable? In this case, Partee died of asphyxia associated with the use of a vascular neck restraint. The court held that the diminished capacity of an unarmed detainee must be taken into account when assessing the amount of force exerted. When it is apparent, or should be apparent, to officers that the individual involved is emotionally disturbed, that is a factor that must be considered in determining the reasonableness of the force employed. Source: Griffith v. Coburn (2007) Scenario #2 Mrs. Ziegler’s husband took her to the hospital because she was depressed and was expressing the desire to commit suicide. She arrived at about 8:00 p.m., reporting that she was planning to drive her car into a tree. Around 9:40 p.m., Mrs. Ziegler asked to go outside with her husband. She did not return and, when hospital staff could not locate her, police were notified and sent to her home. Around 11:00 p.m., Mrs. Ziegler reappeared at the hospital and claimed that she had just left the hospital to smoke. The police were notified and presumably told not to go to her home. Upon her return to the hospital, the emergency room nurse determined that Mrs. Ziegler had a medical illness that caused her to pose a risk of serious physical injury to herself or to others within the near future. The nurse filed a mental health petition detailing her findings and gave it to a doctor at the hospital. The doctor met with Mrs. Ziegler and signed the certificate requesting that Mrs. Ziegler be hospitalized because of Mrs. Ziegler’s statements. Sometime after the doctor signed the certificate, Mrs. Ziegler stated that the law did not allow the hospital to hold her, and she announced her intention to leave. She then left. The nurse, acting on the doctor’s instructions, called 911, and asked the police to locate Mrs. Ziegler and transport her back to the hospital because they thought she was suicidal and they had a signed certificate authorizing the action. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 107 of 126 W O R K S H E E T # 8 A – D I M I N I S H E D C AP A C I T Y ( S P O # 6 ) INSTRUCTOR KEY (cont.) Officer Daniel Jonoshies, acting on the dispatcher’s request, took Mrs. Ziegler into police custody “outside her house…on the walkway or driveway connected to the house,” and returned her to the hospital. Upon arriving at the hospital, Officer Jonoshies was given the petition and clinical certificate for Mrs. Ziegler, and it was reiterated to him by the nurse that the hospital wanted her confined there for mental health reasons. Mrs. Ziegler sued claiming that Officer Jonoshies violated her Fourth Amendment rights. 1. Based on the information above, do you think that the officer’s actions were reasonable? Why or why not? The court stated that, absent suspected criminal activity, a law enforcement official may not physically restrain an individual merely to assess the individual’s mental health. Rather, in the context of a mental health seizure, an officer must have probable cause to believe that the person seized poses a danger to himself/herself or others. (Note: summary judgment was granted to officers) 2. Does it make any difference that the officer did not witness any signs of suicidal behavior? No. A showing of probable cause in the mental health seizure context requires only a probability or substantial chance of dangerous behavior, not an actual showing of such behavior. Just as actual innocence will not render invalid an arrest that is properly based upon probable cause that criminal activity was occurring, a mental health seizure can rest upon probable cause even when the person seized does not actually suffer from a dangerous mental condition. 3. How do you think courts evaluate the existence of probable cause? Courts evaluate the existence of probable cause from the perspective of a reasonable and objective person in the position of the seizing official. If the circumstances, viewed objectively, support a finding of probable cause, then the arresting officer's actual motives are irrelevant. Source: Ziegler v. Aukerman (2008) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 108 of 126 W O R K S H E E T # 9 A – S U S P E C T AR M E D W I T H A F I R E AR M – INSTRUCTOR KEY Scenario #1 Two officers arrested a DUI suspect, handcuffed him, and placed him in the front passenger seat of the police car. As officers were standing outside the vehicle talking, the suspect, still handcuffed, produced a handgun and pointed it in the direction of the officers. Before he fired a shot, the two officers quickly drew their own handguns and fired 22 rounds, fatally wounding the suspect. The district court denied summary judgment for the officers, not because the court believed there was no immediate threat, but because of the contention that they could have responded differently to the threat (e.g., taking evasive action to avoid the danger). 1. Do you agree or disagree with this and why? Student answers will vary. 2. Do you have to wait until a suspect shoots at you in order to return fire? Explain your answer. The Constitution does not require police to gamble with their lives in the face of a serious threat of harm. The Fourth Amendment does not require police officers to wait until a suspect shoots to confirm that a serious threat of harm exists. No citizen can fairly expect to draw a gun on police without risking tragic consequences, and no court can expect any human being to remain passive in the face of an active threat on his/her life. 3. Do you think it would make a difference if only 2 shots were fired instead of 22, as happened in this case? In this case, the appellate court found that the district court’s concern that the number of shots fired was excessive was misplaced. The number of shots by itself cannot be determinative as to whether the force used was reasonable. Both officers fired almost simultaneously. The multiple shots fired do not suggest that the officers shot mindlessly, as much as it indicates that they sought to ensure the elimination of the deadly threat. Source: Elliott v. Leavitt (1996) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 109 of 126 W O R K S H E E T # 9 A – S U S P E C T AR M E D W I T H A F I R E AR M – INSTRUCTOR KEY (cont.) Scenario #2 Police were called to a disturbance involving a man with a gun. Officers arrived on scene and saw a man armed with a shotgun. Ignoring an officer’s command to stop and drop the shotgun, the man ran from the officers with the shotgun still in his hands. After repeated warnings to stop and drop the shotgun were ignored, an officer fired a shot that struck and wounded the suspect. The subsequent lawsuit claimed the officer’s use of deadly force to prevent escape of a fleeing suspect was unconstitutional. 1. Based on the facts given, do you think this could be considered reasonable? Why or why not? In view of all of the facts, the court concluded that it could not say that an officer in those volatile circumstances could not reasonably have believed that the suspect might wheel around and fire his shotgun again, or might take cover behind a parked automobile or the side of a building and shoot at the officer or others. Indeed, if the officer had allowed the subject to take cover, or perhaps circle back around to the crowd, he could have posed even more danger than when he had presented a clear target as he approached them. In this case, even the suspect conceded that the officer would have been protected by qualified immunity if he had shot the suspect as he approached the officers. The court found that, under the circumstances, the officer was no less entitled to qualified immunity because he shot the suspect later instead of sooner. Even though the suspect was apparently fleeing and not pointing the shotgun at the officer, he could have done so in a split second before the officer could have effectively responded (i.e., action vs. reaction). To have defeated the officer’s qualified immunity defense, the suspect had to meet the burden of establishing that, under the circumstances, no reasonable officer could have believed that the suspect posed a risk of serious physical injury to the officer or others. The court found that the suspect failed to meet that burden. Source: Montoute v. Carr (1997) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 110 of 126 W O R K S H E E T # 1 0 A – S U S P E C T AR M E D W I T H A K N I F E / E D G E D W E AP O N – I N S T R U C T O R K E Y Scenario #1 Detectives were investigating an armed robbery of a pizza delivery person that had occurred that evening. The detectives immediately suspected Brandon McCloud, who lived near the robbery and had admitted in an interview with them some three months earlier to having committed 10 to 12 similar armed robberies – once using a handgun, but in all other cases, using knives. After discovering physical evidence near the scene of the robbery suggestive of the same modus operandi McCloud had admitted using in the earlier robberies, the detectives obtained a warrant at about 3:00 a.m. to search where McCloud lived with his grandmother and uncle. At about 5:00 a.m., after observing activity in the house, the detectives knocked on the front door, advised the uncle that they had a search warrant, and proceeded to conduct a protective sweep of the residence. The uncle did not mention that nephew Brandon McCloud was home. The house was dark, and the detectives proceeded from one room to another with flashlights and firearms drawn. While the detectives say they announced themselves several times as “Cleveland police,” others present at the house did not recall hearing this. As the detectives approached McCloud’s bedroom on the second floor, they found the door closed. They barged into the small bedroom, each taking a position inside the room; they spotted McCloud hiding in the closet. With their flashlights and firearms trained on him, they ordered him to come out of the closet and show his hands. After first hesitating, McCloud turned and came out of the closet, holding a knife in his right hand with the blade pointing upward. (The knife turned out to be a standard steak knife with a serrated edge.) Ignoring their commands to drop the knife, McCloud continued to move quickly toward the detectives. Believing they were threatened with imminent serious bodily harm, both detectives simultaneously opened fire, each striking McCloud with several shots, and killing him instantly. McCloud appears to have been about 5 to 7 feet from the officers at this time, and the entire encounter transpired in a matter of seconds. 1. Based on these facts, do you think the officers had probable cause to believe McCloud posed a threat of serious physical harm to them? Why or why not? In this case, the officers were granted qualified immunity because they reasonably thought they had probable cause to believe the juvenile suspect posed a risk of serious physical harm to them because he had a knife, was moving toward them, and was only feet from them at the time of the use of deadly force. Considering McCloud’s stature (i.e., 5’7”, 165 lbs.) and the size of the knife (i.e., standard steak knife with a serrated edge), it was apparent that, if the officers had hesitated one instant (i.e., long enough to allow McCloud to take even one more step), they would have been within his arm’s reach and vulnerable to serious or even fatal injury. The court found that the undisputed circumstances clearly supported probable cause to believe that serious harm was imminently threatened and that use of deadly force in self-defense was justified. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 111 of 126 W O R K S H E E T # 1 0 A – S U S P E C T AR M E D W I T H A K N I F E / E D G E D W E AP O N – I N S T R U C T O R K E Y ( c o n t . ) 2. Other than the weapon itself, what other things might be taken into consideration to determine whether a suspect with a knife poses a threat of serious physical harm? Proximity of knife-wielder, barriers (e.g., mattress lying on floor between officer and suspect vs. a car), suspect’s actions (e.g., walking away vs. approaching) Source: Chappell v. City Of Cleveland (2009) Scenario #2 Shortly after midnight, Jamie Newcomb entered the 7-Eleven store on Crooks Road, in the City of Troy. Two clerks were on duty in the store at the time, Karen Miller and Ruth Wilkerson. A number of customers were also in the store. After being in the store for a short time, Newcomb went around the sales counter and placed a knife under the smock of Ruth Wilkerson at her back. Newcomb directed the clerks to continue waiting on the customers. For more than one-half hour, Newcomb remained in the store. He directed the clerks to empty the cash registers and the muscular dystrophy contribution jar into paper bags, and demanded that the clerks provide him with a ride away from the store. During this period, Newcomb intermittently held the knife to the backs and throats of the clerks. At some point during the robbery attempt, the Troy Police Department was notified or learned of the robbery. Several officers arrived on the scene and took up positions outside the store. Officer Lyczkowski was positioned at the corner of one of the front windows of the store, and had a limited field of view. Approximately 30 minutes after the first officer arrived on the scene, Newcomb and Ruth Wilkerson moved out from behind the counter. By this time, Newcomb had placed the knife in his back pants pocket. Karen Miller remained behind the counter. Newcomb then moved away from Wilkerson, leaving her alone near the front doors. Since the time the officers arrived on scene, this was the first time Newcomb was at a distance from both clerks. At that point, the order was given for the officers to enter the store and arrest Newcomb. Officers Cole and Lyczkowski, dressed in full uniform, were the first to enter the store. Upon entering, one of the officers shouted “Freeze!” Newcomb responded by throwing a coffee pot at the officers and ran toward the rear of the store. When Newcomb reached the end of the counter, with Officers Cole and Lyczkowski in pursuit, he turned and ran behind the counter. Karen Miller was still behind the counter, having crouched down when the police entered. At this point, Officer Denny had entered the store and was in front of the sales counter. As Newcomb continued to run behind the counter, he either tripped or lunged, and he began to fall to the ground near the position of Karen Miller. Believing that Newcomb's actions were an attempt to harm or capture Karen Miller, Officer Denny, reaching over the sales counter, fired one shot from his service revolver. The shot struck Newcomb in the back of the head, inflicting serious injury. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 112 of 126 W O R K S H E E T # 1 0 A – S U S P E C T AR M E D W I T H A K N I F E / E D G E D W E AP O N – I N S T R U C T O R K E Y ( c o n t . ) 1. Based on the information above, do you think that the officer’s actions were reasonable? Why or why not? A reasonable police officer in the position could have believed that the use of deadly force was permissible under the clearly established law and was necessary under the circumstances – the suspect was armed with a knife and had demonstrated his willingness to wield the knife against the store clerks, and when the officers entered the store, the suspect ran back behind the counter from which he knew he had no avenue of escape. Deadly force was appropriate to seize the suspect before the clerk was captured or harmed. 2. The suspect claimed that he posed no threat of harm that would justify the use of deadly force because he was just trying to escape. Does this change your answer above? Why or why not? The actions would still be considered reasonable because the suspect ran behind a counter, which he knew was not an avenue of escape. The suspect’s attempt to escape may have been the response of a confused and startled young man, but he had previously spent at least 30 minutes behind the counter threatening the store clerks with a knife. He knew that along the path he selected, he would encounter Karen Miller, and that he could not perfect his escape by flight alone. 3. The suspect claimed that he posed no threat of harm, as he was unarmed at the time because the knife wasn’t in his hands. Does this change your answer in number one? Why or why not? The actions would still be considered reasonable because the suspect made no attempt to relinquish the weapon. He was not unarmed merely because he had placed the weapon in his pants and was at no point deprived of the availability of the weapon. Source: Newcomb v. City of Troy (1989) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 113 of 126 W O R K S H E E T # 1 0 A – S U S P E C T AR M E D W I T H A K N I F E / E D G E D W E AP O N – I N S T R U C T O R K E Y ( c o n t . ) Scenario #3 The Hartford Police Department was telephoned by Shari Heffington, who stated that West was chasing her around the home with a machete. Deputies McDannel and Shaw went to the door of West's home and were met by Shari. Deputies Lux and Craft remained outside the home to secure the perimeter. Shari informed the deputies that West was in the home and threatening her with a knife. Shari escorted the deputies into the living room when West entered the room and advanced with a machete toward Shari and the two deputies. The deputies ordered West to drop the knife several times, but West failed to heed the warnings. When he advanced within a distance of 4 to 6 feet with the machete raised, McDannel fired his weapon and killed West. 1. Based on the information above, do you think that the deputy’s actions were reasonable? Why or why not? The court held as a matter of law that the deadly force used was not unreasonable in light of the undisputed facts that West advanced towards the deputies with a machete, that he raised it after ignoring a warning to drop it, and that he got within 4 to 6 feet of the deputies before he was shot. The force was reasonable. 2. The deputies entered the home without a warrant. Do you think that, in this case, a cause of action for unreasonable search and seizure would be sustainable? Explain why or why not. No, even if Shari did not have authority to consent to the entry, the telephone call indicated that she was being pursued by a man with a knife. Upon arrival, the deputies verified that an emergency existed that posed a real danger to the police and public. Exigent circumstances in this case did permit a warrantless entry. Source: Rhodes v. McDannel (1991) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 114 of 126 W O R K S H E E T # 1 1 A – S U S P E C T U S I N G N O N - D E AD L Y O R P E R S O N AL W E A P O N S – I N S T R U C T O R K E Y Scenario #1 Police confronted a man at a shopping mall who was urging his dog to attack people. When the suspect turned his dog loose on the officer, the officer used pepper spray on both the dog and the suspect. The dog retreated, but the suspect attacked the officer with a slab of concrete found nearby. The officer shot and seriously wounded the suspect. 1. Based on the information above, do you think that the officer acted reasonably? Why or why not? According to the court, there is no doubt that the officer was reasonable to anticipate that his concrete-wielding assailant posed a potentially lethal danger to the officer’s safety. Source: Pena v. Leombruni (1999) Scenario #2 At approximately 9:30 p.m., an officer pulled over Fields because Fields’ vehicle had a defective headlight. The officer learned that Fields had a warrant, and Fields was placed under arrest. The officer was in the process of determining whether he could turn the vehicle over to the passenger (Colston); however, when a backup officer arrived, Colston gave the officer a false name. The officer gave Colston several attempts to give the correct name. The officer asked Colston to get down on his knees. Colston turned and placed his hands above his head, but did not get on his knees. The officer repeated his order. As Colston went to his knees, the officer pulled his baton. Once Colston was on his knees, the officer told Colston to remain still and cross his feet, and Colston complied. Colston then told the officer his real name. The officer told Colston to get on the ground. Colston told officers he would not get on the ground, and the officers pushed him to the ground in an attempt to prevent him from standing up. Colston resisted the officers’ efforts and forced his way to his feet. One officer began striking Colston with his baton and the other officer tried to grab Colston. Colston violently resisted and knocked one officer to the ground with a single hard blow. With one officer down, the other officer struggled to control Colston. Colston struck the other officer in the face and knocked him to the ground. The blow broke the officer’s glasses and dazed him. The first officer regained his feet and charged Colston. Colston again knocked him to the ground, leaving him limp and motionless. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 115 of 126 W O R K S H E E T # 1 1 A – S U S P E C T U S I N G N O N - D E AD L Y O R P E R S O N AL W E A P O N S – I N S T R U C T O R K E Y ( c o n t . ) From his prone position on the ground, the officer drew his gun and aimed at Colston who was standing between him and the officer on the ground; the officer fired a shot that missed Colston. Colston turned, stepped over the officer’s outstretched legs, and took about two steps away from the officer but directly towards the patrol car where the officer’s shotgun was located. At this moment, the officer fired twice, hitting Colston in the back of his right arm and his buttocks. 1. Based on the information above, do you think that the officer acted reasonably? Why or why not? The court held that the officer’s use of deadly force was objectively reasonable. In the lawsuit that followed, the appellate court sided with the officers and explained the following: At the time the officer drew his weapon and fired the first shot, the suspect was standing between the officers in a position to inflict serious harm on the officers with or without a weapon. When the officer fired the two shots that hit the suspect, he had moved only two steps from the officer toward his patrol car where his shotgun was located. Although the suspect asserts that he was attempting to flee, the officer had no way to know whether the suspect intended to flee or inflict further injury or death on the officers. The court concluded that it could not say that a reasonable officer in this officer’s place would not have believed that the suspect posed an immediate danger of serious bodily harm and deadly force was objectively reasonable. Source: Colston v. Barnhart (1997) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 116 of 126 W O R K S H E E T # 1 1 A – S U S P E C T U S I N G N O N - D E AD L Y O R P E R S O N AL W E A P O N S – I N S T R U C T O R K E Y ( c o n t . ) Scenario #3 Officer Causey (34 years old, 5’8” tall, 200 pounds) made a traffic stop on Davenport’s vehicle. Davenport (44 years old, 5’9” tall, 277 pounds) got out of his vehicle and walked toward the officer’s vehicle. Causey got out and repeatedly instructed Davenport to return to his vehicle. Davenport returned to the side of his vehicle, leaned against it, and folded his arms. Causey called for backup and decided to place Davenport in custody due to comments Davenport made, his body language, and because he was doing the opposite of what the officer was requesting. When Causey reached for Davenport, Davenport brushed the officer’s hand away. Causey then decided to use his Taser, but there was no discernible effect on Davenport. Davenport grabbed the Taser wires and took up the slack as he approached Causey. At this time, Officer Pugh arrived. Causey attempted to drive-stun Davenport, but Davenport began punching Causey in the head and torso, knocking him to the ground. Davenport then turned his attention to Officer Pugh (60 years old, about the same size as Causey), striking him three times, and causing him to stumble backwards. As Davenport attempted to strike Pugh for the fourth time, Officer Causey shot Davenport. 1. Based on the facts given, do you think the officer acted reasonably? Why or why not? After reviewing the evidence in the light most favorable to Davenport, the plaintiff, the circuit court concluded that the force used was constitutionally reasonable and that Davenport failed to establish a constitutional violation. The court reversed the district court's judgment and returned the case to the lower court with instructions to enter summary judgment for the officers on Davenport’s § 1983 claims. The court reasoned that Davenport was non-compliant, actively resisting, and attacked two officers with closed fists and enough force to knock Officer Causey down. Officer Causey testified that he believed that if he did not stop Davenport, he was going to seriously injure or possibly kill Officer Pugh. Causey was also concerned that if Davenport “compromised” Pugh, he could have taken Pugh’s weapon. The significance of this case was the court’s view of officer/subject factors (i.e., Davenport was bigger and stronger) and their view that “closed fisted blows … may constitute deadly force.” Source: Davenport v. Causey (2008) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 117 of 126 W O R K S H E E T # 1 2 A – F I R E AR M S U S E D T O S T O P V E H I C L E S – INSTRUCTOR KEY Scenario #1 Near midnight, a lieutenant with the West Memphis, Arkansas police pulled over a vehicle for having only one operating headlight. Rickard was the driver and Kelly Allen was a passenger in the vehicle. The lieutenant noticed a large basketball sized indention in the windshield. He asked if Rickard had been drinking, and asked him to step out of the car; Rickard drove away instead. The lieutenant gave chase, and five other police cars joined in the pursuit. Their attempt at a “rolling roadblock” failed, and Rickard led police on a high speed car chase, reaching speeds in excess of 100 miles an hour, and passing over two dozen vehicles in the process. Rickard hit a cruiser, spun out into a parking lot, and then resumed moving his car despite his bumper being flush against a patrol car. Officers fired three shots at him. Rickard drove away, almost hitting an officer in the process. As Rickard sped away, the officers fired 12 more shots at him, striking him and his passenger, who both died from a combination of gunshot wounds and car crash injuries. 1. Do you think that the officers’ actions were reasonable? Why or why not? The Court found that, considering the totality of the circumstances, an officer’s attempt to end a high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of injury or death. The police did not fire more shots than necessary to end the public safety threat – if police are justified in shooting to end a threat, they may keep shooting until the threat has ended. Here, during the 10-second shooting span, Rickard continued to flee and drive away. Source: Plumhoff v. Rickard (2014) Scenario #2 An officer initiated a traffic stop of a driver, and the driver pulled into a parking lot. The officer parked and exited his patrol car. The driver stopped for about a second before turning around and heading back toward the entrance of the parking lot at a speed of about 5 to 10 miles per hour. Seconds after the car turned around, the officer fired 3 shots at the car from about 3 or 4 feet away. As the car rolled by, and the officer was safely to the side of the vehicle, the officer shot a fourth time, this time through the driver’s side window. The driver died at the hospital. 1. Explain when, under the Fourth Amendment, an officer may be justified in shooting at a moving vehicle. The Fourth Amendment provides that an officer may shoot at a driver that appears to pose an immediate threat to the officer’s safety or the safety of others (e.g., a driver who objectively appears ready to drive into an officer or bystander with his/her car). An officer may not, however, continue to fire his/her weapon at a driver once the car moves away, leaving the officer and bystanders in a position of safety, unless the officer’s prior interactions with the driver suggest that the driver will continue to endanger others with his/her car. OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 118 of 126 W O R K S H E E T # 1 2 A – F I R E AR M S U S E D T O S T O P V E H I C L E S – INSTRUCTOR KEY (cont.) 2. Based upon the facts, at what point do you think the officer’s actions would be considered unreasonable? Explain your answer. According to the court, the officer’s actions were considered unreasonable when the officer aimed and fired a shot while to the side of the vehicle – he should have had time to realize that he was no longer in immediate danger. Thus, the officer lacked justification to fire at least his final shot. Source: Hermiz v. City of Southfield (2012) Scenario #3 A heavily intoxicated suspect led two police officers on a nighttime, lights-off, high-speed chase for seven miles before pulling off on a gravel road. As the officers approached on foot, the subject put his car into reverse and rammed into one of the officer’s cruisers. The officers opened fire and shot the subject. The subject was forcibly removed from his vehicle. 1. Based on the facts given, do you think these actions were reasonable? Why or why not. If there is a per se rule in the area of excessive force, it is that the totality of the circumstances governs every case. There are many factors at play when deciding the reasonableness of an officer's use of deadly force, including not just whether the suspect poses an immediate threat to the safety of the officers or others, but also the severity of the crime at issue, whether the suspect is actively resisting arrest or attempting to evade arrest by flight, and whether the officers had sufficient time to assess the situation before using deadly force. In this case, the officers were properly found to be entitled to qualified immunity in the subject’s § 1983 excessive force claim because there was no Fourth Amendment violation - the force used (i.e., opening fire at the subject’s vehicle and then forcibly removing him from his vehicle) was reasonable under the circumstances when, as officers exited their vehicles after a highspeed chase, the subject reversed his vehicle and slammed it into their police vehicle. Source: Hocker v. Pikeville City Police Dep’t. (2013) OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 119 of 126 P R AC T I C E E X E R C I S E 1. Describe the relevant factors used in determining if force was reasonable. ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ 2. Explain the differences between active and passive resistance. ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 120 of 126 P R AC T I C E E X E R C I S E ( c o n t . ) 3. Describe when handcuffing may be considered unreasonable force. ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 121 of 126 P R AC T I C E E X E R C I S E ( c o n t . ) 4. Describe when use of a chemical weapon may be considered unreasonable force. ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 122 of 126 P R AC T I C E E X E R C I S E ( c o n t . ) 5. Describe the difference between reasonable and unreasonable force when using electrical weapons. ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 123 of 126 P R AC T I C E E X E R C I S E ( c o n t . ) 6. Explain the civil liability considerations associated with using force against those with diminished capacity/mental illness. ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 124 of 126 P R AC T I C E E X E R C I S E ( c o n t . ) 7. List circumstances when an officer may use deadly force to achieve a seizure. ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ 8. Explain the variables an officer should use to assess the presence of an imminent threat. ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 125 of 126 P R AC T I C E E X E R C I S E ( c o n t . ) 9. Explain officer liability when responding to emergency calls. ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ OHIO PEACE OFFICER TRAINING COMMISSION PEACE OFFICER BASIC TRAINING CURRICULUM Civil Liability & Use of Force, 2-6 Effective Date: 2018/01/01 Page 126 of 126 Submit to OPOTC OPOTC BASIC TRAINING LESSON PLAN MODIFICATION FORM PLEASE USE THIS FORM TO INDICATE ANY PROPOSED CHANGES OR ERRORS WHICH REQUIRE MODIFICATION TO THE LESSON PLAN FOR THE COMMISSION-APPROVED PROGRAM IN WHICH YOU ARE TEACHING. PROGRAM/CURRICULUM NAME: UNIT NUMBER: TOPIC NUMBER: LESSON PLAN EFFECTIVE DATE: PAGE NUMBER TO BE MODIFIED: COPY OF MODIFIED PAGE ATTACHED: (CHECK ONE) YES NO REASON(S) FOR MODIFICATION: CONTENT ISSUE: GRAMMATICAL ERROR: LAW CHANGE: TYPOGRAPHICAL ERROR: OTHER (PLEASE SPECIFY): RATIONALE FOR MODIFICATION (ATTACH DOCUMENTATION IF NEEDED): ______________________________________________________ Commander or Instructor Name ______________________________ Date Contact Phone Number: ____________________________________________________________________ Email Address: ____________________________________________________________________________ Ohio Peace Officer Training Commission Education & Policy Section ● P.O. Box 309 ● London, Ohio 43140 ● PHONE: 800.346.7682 ● FAX: 866.393.1275 ● OPOTCEducationandPolicy@OhioAttorneyGeneral.gov