1. Leadership Institute Branch Legal Training Section Conducted Electric Weapons (CEW) and the Use of Force Roll Call Training 2016-2

2. Objective At the end of this review, the viewer will be able to: Understand the updated case law from the U.S. Sixth Circuit Court of Appeals when using a conducted electrical weapon in a situation requiring the response to force. 2RCT 2016-2 CEWs and Force

3. 4 th Amendment “The right of the people to be secure in their persons... against unreasonable...seizures” Using force is a seizure! Graham v Connor case states officer’s actions must be “objectively reasonable” in light of the facts and circumstances confronting him Using excessive force is unreasonable! Court must balance the nature and quality of intrusion on an individual’s 4 th Amendment interests against countervailing government interests at stake. 3RCT 2016-2 CEWs and Force

4. Reasonableness Factors Court considers at a minimum the following: 1. severity of the crime at issue; 2. whether the suspect poses an immediate threat to the safety of the officers or others; 3. whether suspect is actively resisting arrest or attempting to evade arrest by flight RCT 2016-2 CEWs and Force4

5. Officer’s subjective intent or motivation is not a consideration in assessing reasonableness Reasonableness is viewed at the moment of the use of force, as “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Courts recognize officers “are often forced to make split-second judgments- in circumstances that are tense, uncertain, and rapidly evolving” about the amount of force necessary Training and documentation are critical. Requires careful attention to the facts and circumstances of each use of force in a particular case RCT 2016-2 CEWs and Force5

6. CEWs and Force The U.S. 6 th Circuit Court of Appeals has ruled in various cases in the past decade regarding CEW use by law enforcement. Again, the analysis as to the reasonableness of the use of the CEW is viewed in light of the factors set out in the Graham v. Connor case. The particular facts and totality of the circumstances in each case form the justification for using force RCT 2016-2 CEWs and Force6

7. Note Law enforcement must recognize that the court looks at the facts presented in a case and then rules. Each incident involving force will present differing facts which the officer must consider. This may be different than what officers were initially trained to do. RCT 2016-2 CEWs and Force7

8. Unreasonable Use of CEW As early as 2008, in Landis v. Baker, the Court held that tasing a “suspect surrounded by officers, in a prone position” and not even fully handcuffed was unconstitutional. “gratuitous or excessive use of a taser” violates a clearly established constitutional right. In Goodwin v. Painesville the Court found excessive force where the subject, still convulsing from previous tasings and physically unable to comply with commands to put his hands behind his back was not “actively resisting” RCT 2016-2 CEWs and Force8

9. Unreasonable Force In an unpublished case where the suspect could barely move, had stopped resisting, was under control, and thus posed little risk to himself or anyone else by the time he was in handcuffs—at which point he was tased; could be viewed by a jury as excessive (Bolick v. East Grand Rapids). A wedding guest, sitting in his truck, not disobeying police commands was tased. Court ruled this was excessive (Kijowski v. City of Niles) RCT 2016-2 CEWs and Force9

10. What’s Reasonable? “When a suspect actively resists arrest, the police can use a taser to subdue him; but when a subject does not resist; or has stopped resisting, they cannot.” (Rudlaff v. Gillespie); the suspect refused to be handcuffed, fled from the officers, was “out of control”, breaking windows and jumping on top of cars. “When a person resists arrest- say by swinging his arms in the officer’s direction, balling up and refusing to comply with verbal commands- the officers can use the amount of force necessary to ensure submission” (Rudlaff) Foos v. Delaware: a hostile, belligerent and agitated suspect, who repeatedly revved the engine of his wrecked car, then violently thrashed around and reached into the back of his car as if to retrieve a weapon RCT 2016-2 CEWs and Force10

11. Active resistance could be characterized as “noncompliance” that is coupled with “some outward manifestation- either verbal or physical- on the part of the suspect that suggests volitional and conscious defiance.” see (Eldridge v. City of Warren) Active Resistance does not include being “compliant or having stopped resisting” (Hagans v. Franklin Cnty. S.O) Tasing a subject who had been wrestled to the ground; then refused to move his arms from under his body (Caie v. W. Bloomfield Twp.) RCT 2016-2 CEWs and Force11

12. Additional Considerations Courts place great weight on officers’ failure to warn a suspect before deploying a Taser. An officer may be held liable for failure to intervene during the application of force by other officers where the officer observed the excessive force and had the opportunity and means to prevent the harm (Turner v. Scott) The mental illness of a suspect must be considered as a factor in reasonableness where it is known or should be known (Sheffey v. Covington) and (Champion v. Outlook Nashville, Inc.) RCT 2016-2 CEWs and Force12

13. Questions If you have any questions concerning this presentation, please feel free to contact the Legal Training Section in one of the following ways: Website: www.docjt.ky.gov/legal Phone: 859-622-3801 Email: docjt.legal@ky.gov RCT 2016-2 CEWs and Force13

14. References Graham v. Connor, 490 U.S. 386 (1989) Landis v. Baker, 297 Fed. Appx. 453 (6 th Cir. 2008) Bolick v. City of East Grand Rapids, 580 Fed. Appx. 314 (6 th Cir. 2014) Caie v. West Bloomfield Twp., 485 Fed. Appx. 92 (6 th Cir. 2012) Rudlaff v. Gillespie, 791 F.3d 638 (6 th Cir. 2015) Foos v. City of Delaware, 492 Fed. Appx. 492 (6 th Cir. 2012) Eldridge v. City of Warren, 533 Fed. Appx. 529 (6 th Cir. 2013) RCT 2016-2 CEWs and Force14

15. Hagans v. Franklin Cnty. Sheriff’s Office, 695 F.3d 505 (6 th Cir. 2012) Turner v. Scott, 119 F.3d 425 (6 th Cir. 1997) Sheffey v. City of Covington, 564 Fed. Appx. 738 (6 th Cir. 2014) Champion v. Outlook Nashville, Inc., 380 F.3d 893 (6 th Cir. 2004) Photos Slide #2 www.theguardian.com 03/17/2016www.theguardian.com Slide #7 www.policemag.com 03/17/2016www.policemag.com RCT 2016-2 CEWs and Force15