2013 Legal Update & Best Practices Use of Force 2013 Legal Update & Best Practices

Review: Tennessee v. Garner (1985) Graham v. Connor (1989) Scott v. Harris (2007)

What’s left of Garner? Where the 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. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

Deadly force- How do you define it? Force which creates a “substantial likelihood of death or serious bodily harm Adapted from the Model Penal Code Now adopted by all federal circuits Why is it important? Canine case application

A word on warnings… Plaintiffs various arguments Police Don’t Move Drop the Gun/Knife OR I will shoot! Stop or I will shoot!

Response to Resistance… Is this better Terminology

Force Continuums Have they outlived their usefulness? Why are they confusing? How many variations are there? Remember, this is one law enforcement operations where the Supreme Court has told us how to analyze…

Graham’s Three Part Test Seriousness of Offense Physical Threat Subject Offender Size/Ability Availability of Weapons Persons Present Subject Actions Active Resistance or Attempt to Evade Arrest by Flight Now…consider the options on the hurt scale and balance

9th Circuit Did officer consider lesser alternatives Other Circuits-no requirement but sometimes the courts put the consideration on the plus side for officers where they considered alternatives though not required to do so.

Jails What is status of inmate? What circuit are you in? Trends Malicious and Sadistic or in good faith to maintain order, discipline, and security What was need for force in comparison to the amount actually used? Was force tempered by follow-up.

Danley v. Allen, 540 F.3d 1298 (11th 2008) Prisoner acting up-sprayed with one short burst (3-5 Second Blast) Placed in cell and not allowed to decontaminate Failure to allow decontamination after he calmed down was a failure to temper the force

Brown v. Cwynar, 2012 U.S. App. LEXIS 11466 (3rd Cir. June 7, 2012). Officer Cuscino possessed the following knowledge at the time he fired the taser: (1) he had been informed by two dispatch calls that a police officer was in need of assistance at Lawrence Village Plaza and was fighting with someone; (2) when he arrived, he personally observed Brown scuffling with police officers in a car; (3) he was informed by Officer Cwynar that Brown had already been tased but continued to act uncooperatively; and (4) he observed Brown lying on the ground and refusing to release his hands from beneath his body. Together, this information supplied Officer Cuscino a reasonable basis to conclude that Brown would continue to resist arrest and to act belligerently towards the police were he not subdued. Moreover, Officer Cuscino personally warned Brown he would be tased if he did not release his hands, and Brown was undeterred.

TASER Multiple Deployments Long Duration Direct Chest Shot

Rescue Position Following Resistance Once Restraint Accomplished Switch Gears….No Time to Rest Get subject into a position which facilitates breathing and closely monitor. A word on cuffing under power

Documentation The importance of officer presence… What do most people, evens criminals, do when they observe law enforcement

Questions?