Officers may use force to overcome resistance to a lawful arrest. (iStockphoto)
FEATURED IN TACTICS AND WEAPONS
Within the professional law enforcement community, there are five recognized and accepted purposes for which a legitimate use of force might be justified. These five well-defined and established purposes are frequently referred to as the "Rules of Engagement" and are basically categorized as:
- Self Defense: a right common to all persons
- Defense of Others: a duty assigned to police personnel
- Effectuate an Arrest: a vested authority granted by law
- Prevent an Escape: a vested authority granted by law
- Overcome Resistance: a vested authority granted by law
In terms of frequency, the most common reason for the police use of force is grounded in the fifth "Rule of Engagement." More often than not, law enforcement officers rely on a variety of force options simply calculated to overcome resistance. Such force applications might involve verbal commands, physical control techniques or the use of a weapons system up to and including the use of deadly force.
Over the years, your authors have observed literally thousands of use of force litigations in which the underlying contention is based on the notion that the involved officer(s) employed excessive force to defeat or control a resisting suspect. This begs the question; just what is excessive force when confronted by a resisting suspect? The answer to the question can be complicated if not viewed through the perspective of an objectively reasonable standard of care.
In order to properly assess force applied to overcome resistance, one must understand certain police terminology. For example, working police officers understand that resistance can be either active or passive. A person or group that actively resists represents unique challenges and threats to the safety of the arresting officer, the community and even to themselves. A person or group that passively resists offers yet another set of challenges including the real potential that the passive condition might rapidly escalate to an active confrontation or some other dangerous situation, again increasing the risks to all parties. It is important to recognize that the active and passive categories are not mutually exclusive, meaning that the situation might involve both categories in series with sudden changes in the risk factor. It is not uncommon for law enforcement officers to encounter sudden changes in behavior while dealing with intoxicated persons, violently enraged persons, mentally unstable persons or criminal suspects attempting to flee from or attack the arresting officer. Herein lies one of the more significant threats to officer safety.
The City of Anaheim, CA is perhaps best known for Disneyland, the so-called "happiest place on earth." If we back away from the lights, costumes, music and theatrical entertainment and take a broader view of the City of Anaheim, we can observe a modern, well-run municipality that includes a first class, well-trained, professional police department.
On a busy Friday night in 1999, Anaheim PD patrol officers were dispatched to investigate a suspicious person call at a local convenience store. The call information cautioned the responding officers that a male subject was acting in a bizarre and unusual manner consistent with mental illness or substance abuse. After contacting the reporting party at a nearby apartment and recognizing that the same subject had a police contact just the night before, three uniformed police officers re-deployed to the convenience store and quickly located the male subject conversing with two or three other males. As the officers approached, the other males backed away and disengaged. The three officers closed on the male subject and took up standing positions of advantage, somewhat surrounding the male subject. The officers quickly recognized abnormalities in the subject's demeanor and behavior. Given the subject's known mental illness and use of both prescription drugs and illicit street drugs, the officers deployed a controlled, low-key and hopefully calming conversation with the subject in an attempt to determine his mental state. By most accounts the officers' conduct was exactly consistent with modern law enforcement training. The officers perceived "mood swings" in which the subject responded appropriately and then deteriorated to hallucinations reporting that snakes and alligators were attacking him. The officers took note that the subject's apparent fluid mental state drifting in and out of reality. Some of the subject's body movements and verbal expressions caused the officers concerns that the subject might attempt to break and run and possibly dash out into a heavily traveled roadway. All three officers concluded that the subject was experiencing a mental emergency and represented a threat to his own safety and the safety of others.
California, like all other states, has enacted very specific laws concerning the emergency authority granted to peace officers to effectuate a non-criminal detention of such a person for the expressed purpose of seeking a proper psychological assessment. Based on their training and experience, the attending officers concluded that the subject's condition warranted such a detention and assessment. Acting in concert, and moving in a non-threatening manner, the officers quickly and efficiently placed the subject in handcuffs and began to escort him to a nearby police vehicle. At that time, the officers intended to simply transport the subject to a local medical facility for a medical evaluation.
As the subject moved towards the police vehicle, he demonstrated active resistance by continuous yelling and screaming, extreme muscle tensioning, body twisting, kicking and repeated leg blocks and thrusts. The two officers holding and escorting were fully capable of maintaining the highly animated subject. The 30 or so feet traveled to the police vehicle was not a great distance to cover, but the subject's intense physical activity interspersed with moments of apparent surrender made the trip difficult and unpredictable. Once at the police vehicle, the subject raised his legs and pushed off of the open doorway against the officer's efforts. The subject's strength and endurance was remarkable, so much so that the two officers realized that they could not overpower the subject and force him into the police vehicle. Acting in concert, the two officers lowered the subject onto the ground in a prone/handcuff position.
Once stabilized on the ground, the officers' continued verbal calming techniques succeeded in producing a de-escalation of resistance and the subject's lucid statement of surrender and cooperation. The officers lifted the subject up off the ground and again attempted to place him into the rear seat of the police vehicle. This effort was met by yet another extreme "mood swing" by the subject who again demonstrated extraordinary strength and endurance as he physically prevented being place in the police vehicle.
Unlike the subject, the police officers experienced physical stress and fatigue. This led to the realization that the subject would be better transported by ambulance, strapped to a wheeled gurney. One officer requested a "no code" ambulance to transport a "5150 patient." The officers lowered the subject to the ground and restrained him with partial body weight applied to his posterior shoulder, waist and legs. The subject continued to manifest "mood swings" that ranged from promises of surrender to threats against the officers. Civilian witnesses observing the scene later reported that the police officers were controlled, disciplined and well behaved. Civilian witnesses and police accounts described the subject's highly animated performance and continual yelling. Some shouts attributed to the subject included his complaint of not be able to breathe. The subject's non-stop physical resistance and continuous yelling did not cause any of the attending officers to believe that the subject was actually experiencing breathing difficulties. At the same time, the officers took care to monitor their own physical condition as well as that of the highly animated subject. One officer continued to verbalize with the subject in hopes of calming him down. At some point, the officers recognized that they were tiring, but the subject was not. Another radio request was made asking the ambulance crew to "step it up."
Time passed and the officers continued to restrain the subject with barehanded techniques, leg leveraging, partial body weight and ultimately the use of a "full restraint hobble" device securing the subject's ankles together and tethering them to the handcuffs. By most accounts, the subject had engaged in 10 to 15 minutes of extreme physical exertion mixed with continuous yelling. The use of the hobble device was calculated to compensate for the physical exhaustion of the attending officers.
The scenario continued to play out in the well-lit parking lot and in full view of the public. Once the hobble device was affixed to the rear handcuffs, the officers re-assessed the subject's condition and were suddenly surprised that the violent animation had abruptly ceased. The officers immediately checked for pulse and respiration and found none. What had been a serious tactical engagement suddenly became a life-threatening medical emergency. Yet another radio request was made advising the ambulance crew to respond Code 3 and alerting the paramedic team to the change in conditions. At the same time, the officers repositioned the subject, released the restraints and initiated emergency CPR protocols consistent with modern law enforcement training.
Upon arrival, the paramedics first found the subject "flat lined" and non-responsive. Advanced life support protocols were initiated and a pulse was re-established along with rescue ventilation. The subject was transported to a nearby trauma center were he was stabilized in a "vegetative state." For some time, the subject remained comatose and he ultimately expired without regaining consciousness. Toxicology findings established that the subject was cocaine intoxicated at the time of his encounter with the police officers.
This 1999 "sudden in custody death" incident gave rise to a federal civil rights lawsuit that continued for ten years. The involved officers and the City of Anaheim endured significant and protracted emotional and financial turmoil while the judicial process attempted to answer the question: Did the officers use excessive force?
The judicial process took ten years to reach a conclusion. In the initial civil rights action, the district court ruled in favor of the officers and the city on the grounds that the officers were entitled to qualified immunity. Here the district court determined that the officers acted in the scope of their special employment and did not breach a "clearly established constitutional right." Of course the plaintiffs disagreed and filed an appeal that brought the matter before the Ninth Circuit Court of Appeals for review.
Following accepted legal protocols, the Ninth Circuit considered the facts "most favorable" to the plaintiffs, thus minimizing the police accounts. In this written ruling, the Ninth Circuit Court opined:
"We again confront the interplay of excessive force and qualified immunity in a case in which a mentally disturbed individual suffers serious injuries as a result of an encounter with police officers."
"Three Anaheim police officers determined that Brian Drummond, who was unarmed and mentally ill, should be taken to a medical facility for his own safety, but the manner in which they attempted to subdue and restrain him resulted in his falling into a coma from which he has never recovered."
"We hold that, under the circumstances, it would have been clear to a reasonable officer at the time of the encounter that the force alleged was constitutionally excessive."
The Ninth Circuit Court of Appeals made multiple references to the fact that the subject was "unarmed" at the time and much smaller than the involved police officers. The Court noted that the subject was mentally ill and agitated and hallucinating, but made no note of the cocaine intoxication. The court concluded that two of the officers, one of whom reportedly weighed 225 pounds, "put their weight upon Mr. Drummond's back and neck" even though "Drummond offered no resistance." The court accepted the plaintiffs' assertion that the officers ignored the subject's plea for water and his complaint of being unable to breathe. The court further accepted the plaintiffs' notion that the officers were "laughing" during the encounter.
Throughout the judicial process, the plaintiffs relied heavily on the false theory of "positional asphyxia" as the cause of death. As the litigation proceeded, the plaintiffs shifted to the newer term "compression asphyxia".
Essentially, the plaintiffs created and crafted a cause of death that was inconsistent with the facts of the case supported by the pre-mortem and post-mortem medical findings. In contrast, the defendants offered evidence that the subject suffered a sudden coronary failure related to his mental state, his cocaine intoxication and his extraordinary physical exertion. In a written ruling, the Ninth Circuit Court opined:
"Although the officers in this case did not shoot or beat Drummond, the force allegedly employed was severe and, under the circumstances, capable of causing death or serious injury. Drummond claims that two officers continued to press their weight on his neck and torso as he lay handcuffed on the ground and begged for air. Under similar circumstances in what has become known as "compression asphyxia," prone and handcuffed individuals in an agitated state have suffocated under the weight of restraining officers."
The Ninth Circuit Court reversed the district court and ordered the matter to be re-tried some ten years after the event. The plaintiffs continued to assert various theories as to how the police officers caused the death of Brian Drummond. The defense counsel presented clear medical evidence debunking the "positional asphyxia" and/or "compression asphyxia" theories and demonstrated to the jury that the subject's long history of mental illness, use of drugs including cocaine and methamphetamine and alcohol abuse contributed to a sudden coronary seizure that proved to be fatal during the lengthy struggle with the police officers.
After listening to weeks of testimony, the jury exonerated the involved officers of any wrongdoing or excessive force. It took ten years to examine, assess and evaluate a police incident that lasted perhaps twenty minutes.
Consider this, if it took ten years to conduct and conclude this particular judicial review of a force incident, how important then was the original investigation effort and report writing? Over the years, and many trials, your authors have concluded that what is typically on trial is the record of the event rather than the actual occurrence. As the Ninth Circuit Court correctly noted, there were no shots fired or baton strikes in the Drummond matter, only a ground stabilization followed by a maximum restraint using handcuffs and a hobble device.
The case at hand is significant to law enforcement. Once again, the flawed theory of "positional asphyxia" has been exposed as an incompetent medical opinion, a fact now acknowledged by its originator. Even the creation of the new term "compression asphyxia" fails to correlate with modern police restraint techniques.
Long, strenuous physical activity can and does cause sudden coronary failures in young persons, trained athletes and certainly subjects with pre-existing coronary abnormalities. Even police officers that are thrust into sudden and extreme physical exertion occasionally suffer coronary failures.
The case at hand is significant to law enforcement also because it demonstrates the calculations necessary in establishing the objectively reasonable standard concerning the police use of force. In review, take particular note of the subject's widely varying conduct, or "mood swings." His behavior was at time passive and compliant, even offering to surrender on multiple occasions. Then his behavior escalated to extreme active resistance coupled with wild hallucinations and verbal threats to harm the officers. As the subject's resistance changed, the described police procedures were adjusted. As the situation evolved from tactical to medical, the described police procedures were adjusted. And, all of this occurred in a rather brief field encounter and certainly not in the security and comfort of a federal court house.
It occurs to your authors that the initial litigation and the appellate court review quite possibly processed the available information backwards. In other words, the paramount issue was that the subject suffered a life-threatening and ultimately fatal injury and this outcome was disproportionate to the non-criminal nature of the contact and mitigated further by the subject's apparent mental deficiency. The death consequence was considered unacceptable; hence some other less injurious alternative should have been employed and might have produced a more acceptable outcome. This ill-founded logic fails to address the underlying and unavoidable realities created by the subject and common to cocaine and methamphetamine intoxication as well as certain mental conditions.
To be clear, an undesirable outcome does not necessarily establish improper procedures. In the case at hand, the involved officers complied exactly with proper police procedures and training. The ultimate death consequence was not related to the applied police procedures. The death consequence was more likely related to the subject's criminal history, life style choices, long-term substance abuse and physical condition. This conclusion was apparent when the recent jury returned defense verdicts.