Two civil suits were separated by approximately 30 days and 3,000 miles. I provided testimony in two U.S. District Courts to assist the defenses of two Alaska police officers and one Florida bike cop. Both incidents had striking similarities. By coincidence, both involved physical force issues and what have become known as maybe people.
Almost a quarter century ago, Chuck Remsberg penned his second best-selling text in the three-book Street Survival series, The Tactical Edge: Surviving High-Risk Patrol. Chapter 9, called “Physical Control,” outlined what constitutes yes people, maybe people and no people. Yes people are cooperative. They respond to verbal commands and, as such, require no more force than clear, concise verbal commands for the purposes of custodial arrest or control. Maybe people haven’t quite decided whether they want to go along with the arrest process. Although not actively resisting, they may demonstrate some passive non-compliance, moving slowly in response to your commands, looking around, asking you to repeat your commands. The force needed to take custody of these maybe people might be wrist locks, an arm bar or some other come-along. No people actively resist arrest. They may run or jerk away when you lay on hands or otherwise resort to assault in their effort to thwart the arrest process. No people belong on the ground for handcuffing. In this month’s column, we’re going to address the physical control tactics needed for dealing with maybe people.
Two uniformed bike cops are summoned by the bouncers at a club to help remove a loud, boisterous customer. Upon arrival at the local tavern, they’re met by not only the doormen, but also by several looky-loos watching a 6’2”, 220-lb. jaw-boning intoxicated male push his way through a crowd of patrons trying to either get back in or get out (depending on who you talk to).
Upon the officers’ approach, the bouncers make it clear that Mr. Loud Mouth isn’t welcome back inside their establishment. While one of the officers consults with the complainants, the other approaches the loud talker and informs him that his presence isn’t welcome in the club, and perhaps it’s time to take it home. However, the officer’s words don’t penetrate the subject’s cranial vault, and he starts up with the customary, “I don’t have to leave,” “I know my rights,” and “I’m not going anywhere.” It seems he’s partially right. Yes, he does have to leave, and he probably does know his rights. As it turned out, Mr. Loud Mouth is an ACLU-type lawyer who made his bones in the legal community by suing police officers.
However, neither officer is aware of the big mouth’s education level. All they know is the suspect is doing his best Sammy Davis Jr./Fred Astaire routine on the sidewalk and not vacating the area. Light escorting doesn’t convince him to leave and, when a crowd starts to gather, one of the officers discretely draws his Taser in anticipation that Level 4 force might become necessary. Eventually, the suspect allows the officers to take him into custody, and he’s handcuffed and processed on a minor disorderly conduct charge.
Mr. Drunk and Disorderly files suit and names the officers, the city and half the police department as defendants. A motion for summary judgment fails to bring this matter to a resolution, and the case is set down for trial. The matter is helped in the court of public opinion when the disorderly conduct charge is tossed by the local DA.
One quiet summer night, the tranquility of the Land of the Midnight Sun is broken by a call of an intoxicated husband who’s decided to rearrange the furniture at his residence. His method and manner of interior design include playing demolition derby with the couple’s brass bed, which he dragged downstairs and threw out the front door, onto the driveway. For the coup de grace, he drove over the bed frame with his full-size F-250 pickup. His encore consisted of throwing rocks and beating on his wife’s vehicle, the one she sought refuge in while dialing 9-1-1. Two officers were sent to investigate. Mr. Suave and Debonair decided his conduct didn’t constitute domestic violence and opted to verbally thwart the investigatory efforts of the responding officers.
Soon, the three were joined by two other family members, one a highly intoxicated daughter, the other a 50-lb. mixed breed dog, neither of whom was very eager to see the presence of the local gendarmes. The escort officer held the transition into wrist locks and the wrist locks transition into arm bars. During the arrest process, Mr. Elegant sustained a dislocated shoulder, a re-injury, it turns out, of a former dislocation he had sustained from a snow machine accident years before. However, a lawsuit is filed and the motion for summary judgment is denied. As in the Florida case, the original DV charge wound up in the circular adjudication file.
The Defense Strategy
As odd as it seems, both cases worked their ways through the civil justice system simultaneously, some 3,000 miles apart; and, within a one-month period, your humble columnist traversed the nation and began the education process for two U.S. District Court juries.
In sum and substance, both were given 45-minute primers on what constitutes passive resistance or passive noncompliance, depending on the terminology of the respective agencies. They appeared to listen carefully to the definitions and examples of both passive resistance/passive noncompliance and the reasonableness of soft control techniques to counter that level of resistance. They were given specifics on how those techniques were designed to permit the application of handcuffs with minimal chance of injury if the subject ceased their passive resistance, or how they might escalate to take-downs and ground stabilization or higher levels of physical control techniques should he choose not to comply. They heard that although neither subject offered mechanical or physical energy enhancement toward the officer(s), their verbal noncompliance, body language and intimidating demeanor constituted resistance to what the court had already determined to be lawful orders issued by the officers.
They were also informed that officers are universally trained and taught that reasonable physical force is authorized to restrain, detain or subdue a resistant individual and/or bring an unlawful situation effectively under control. Apparently they listened well, because within one hour—both juries, some 3,000 miles apart—came back with verdicts exonerating the respective officers. One jury even asked if they could order the plaintiff to pay the defense’s legal expenses, something the defense in Florida began to initiate within two days. The Alaska jury didn’t make such a request, but it didn’t matter. There, provisions are in place for partial compensation when the defense prevails at trial.
What helped both defenses greatly were the reports authored by the respective officers. Without exception, their subject management reports were concise, yet detailed and complete. Their articulation of the events that occurred before, during and after the encounters was exceptional. This was especially remarkable because, in one case, the officer was deposed almost four years after the fact. None of the depositions contained any contradictory information from what was in the statements/reports filed after the incident. Both cases were helped by the highly competent defense attorneys retained by the agencies. I was fortunate to be retained during the early stages of the litigation and was able to consult frequently with the defense counsels.
The moral of the story? Don’t automatically discount even minor force applications that occur during what some officers might perceive to be mundane and routine arrests. Most agencies require subject management reports for any force applications higher than mere handcuffing. That’s a great idea.
In today’s litigious society, where more than a million attorneys are all scrambling for a piece of the settlement pie that many municipalities are all too willing to serve up whenever a Notice of Claim is filed, you have to assume that every arrest in which even minor physical force is used is going to result in a lawsuit. Plan for it. Don’t let the fear of litigation (or what some force trainers call litigaphobia ) cause you to not use reasonable force to protect yourself or make a lawful arrest. Just make sure you document your force application thoroughly and completely after the fact.
Last, should the suit come down the pike following any use of force, you must consult frequently with your legal counsel in preparation for your defense.
Until next month, stay safe!