A recent lower-court decision in Tennessee may be a bellwether signaling a need to tweak law enforcement use-of-force policies.
At issue is whether department policies and the training to support them should cover use of force against injured persons.
The unpublished ruling in April 2013 from the U.S. District Court in Nashville is important, says Michael Brave, an attorney who closely monitors force-related civil and criminal cases, “because I know of no documented policy or training currently in place that offers guidance to officers on this subject.”
The question arose after a hit-and-run driver in Dickson (Tenn.), left a motorcyclist sitting in pain in a roadway with a fractured hand, leg, and ankle, the latter manifested by a bone sticking through the skin. When a rookie Dickson officer arrived, an EMT was kneeling behind the injured party and cradling his head to prevent movement that might result in spinal injury. In one hand, the biker was clutching a closed pocketknife that had fallen to the pavement during the crash.
Some details are disputed, but essentially a fire lieutenant apparently told the officer, “We need to get the knife from him.” After the biker ignored repeated commands to put the knife down or surrender it, the officer delivered a forearm strike to the biker’s face with such force that it knocked the biker and the EMT to the ground, dislodged one of the biker’s teeth, and caused his face to bruise and swell. The knife clattered to the pavement and was safely recovered.
Everyone agreed that the injured motorcyclist “never threatened” the EMT, “was not combative or violent,” and was “never told why he could not keep the pocketknife.” The EMT, the only first responder in physical contact with him, testified that he “wasn’t too terribly concerned” about the knife, considering that the severely injured subject “wasn’t gonna get up and run off.”
The biker sued the city of Dickson and the officer individually, claiming violation of his federal civil rights, along with other force-related abuses. The defendants moved for summary judgment, based on qualified immunity for the officer and lack of municipal liability for the city.
In analyzing the case, Senior Judge John Nixon pointed out that “police officers have the responsibility and authority to secure accident scenes” and thus will foreseeably “interact with injured suspects.” In that context, “without proper training,” in the court’s opinion, they “will use excessive force.”
The officer testified that he “received no instruction on mitigating use of force when dealing with injured persons, whether at the police academy or the department.” The agency had no policy or general-order guidelines on this matter, nor did it “train its officers on how to approach, question, or deal with injured subjects,” including those being held in “c-spine” (a protective manner) by EMS responders, Nixon wrote.
Consequently, the court denied summary judgment for the city on the grounds that the PD’s “existing training and policies were inadequate.” Nixon found “sufficient evidence that the failure to train” the officer on the use of force on injured parties “was closely related to or actually caused the constitutional violations complained of” and raised the possibility that the agency was “deliberately indifferent to its failure to train.”
Summary judgment was denied the officer as well, on claims that his conduct was “outrageous and...constituted intentional infliction of emotional distress.”
At the time of the officer’s forearm strike, the motorcyclist was an “incapacitated” accident victim, “never the suspect of a crime,” the court said. He was “resistant” to the officer’s commands but not violent and “never made any verbal threats, never attempted to open the pocketknife, and never tried to hurt anyone with it.” Posing “no immediate threat,” he had “a right to be free from gratuitous and excessive force.”
“[A] reasonable jury could find it beyond the bounds of decency” for the officer--himself a former EMT--to deliver the face strike “when the victim had obvious injuries that could be worsened by physical contact,” Nixon wrote. As the plaintiff maintained, the officer “could have locked [the motorcyclist’s] arm to retrieve the pocketknife, rather than hitting him in a ‘no strike zone.’ “
Thus, the case moves forward, with the city and the officer himself at risk--and with potential implications for other agencies as well. Trial is set for next August.
Meanwhile, Brave offers these observations for agencies regarding Nixon’s decision:
1.) Consider providing officer guidance (policy and training) on mitigating use of force when dealing with injured subjects receiving medical attention, especially when the subject is not reasonably perceived as an immediate threat. Include how to approach, question, and deal with injured subjects, including those being held in “c-spine.”
2.) In using force on injured subjects receiving medical attention, officers shall reasonably consider force-mitigating circumstances related to the person’s known injuries and medical care. Such mitigating considerations may include immediate threat risks from the subject, approaching, questioning, interacting with, and applying force to the injured subject.
