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Police use of force, CEWs, and the mentally ill

Persons who pose only a threat to themselves should be treated with extreme caution in regards to using physical force


In addition to providing police officers with crisis intervention team training, agencies should also be providing training on the topic of “excited delirium.”

Recently there have been several court decisions — including those at the federal level — that have addressed the issue of police use of force involving mentally ill subjects. One of these cases comes from the U.S. 10th Circuit and another from the U.S. 4th Circuit. Both of these cases merit our consideration.

On February 4, 2015, the U.S. 10th Circuit Court of Appeals decided Aldaba v. Pickens which dealt with a case where the subject was contacted in the context of a protective custody issue rather than a criminal violation. The subject went to the hospital voluntarily. He was diagnosed with dehydration and severe pneumonia which led to a condition called hypoxia-low oxygen levels, which can affect one’s mental state.

After being admitted to the hospital, the subject’s condition deteriorated from being pleasant and cooperative to being anxious and aggressive. He began to display bizarre behavior and accused the hospital staff of trying to poison him. He also claimed he was God and Superman.

The 10th Circuit decision

The subject was prescribed some sedatives in an attempt to calm him but he refused the medication. The police were then notified for “assistance with a disturbed patient.” Two officers responded to the call. They observed the subject standing in a hall, visibly agitated. The officers tried to calm him and ordered him to the floor but he refused to comply, even after repeated warnings that they would use a Conducted Electrical Weapon (CEW) on him.

One officer fired his CEW in probe mode, striking the subject in the upper torso. The CEW was not effective and a physical struggle ensued. The subject was pushed face-first against a wall and the officer used his CEW in drive-stun mode to the back of his shoulder. This was also ineffective so the subject was forced to the floor, where he continued to resist. The officers were finally able to restrain the subject to the point where a nurse was able to administer sedatives. The subject then went limp, made a grunting sound and vomited and stopped breathing. Medical personnel immediately initiated CPR but the subject died shortly thereafter.

The 10th Circuit affirmed the trial court’s denial of granting qualified immunity to the officers in the subsequent lawsuit. Besides to considering the tenets of Graham v. Connor, (severity of the crime, whether the suspect poses a threat to the safety of the officers or others, and if he is actively resisting arrest or attempting to evade arrest by flight) the court added some additional relevant factors to apply in cases involving cases where no crime has been committed.

The 10th Circuit identified:

1. Governmental interest in protecting the individual from harming himself
2. The individual’s mental health
3. Whether the officers knew, or should have known the individual had special characteristics making him more susceptible to harm from this particular use of force

Where the reason for the seizure is to ensure the individual receives medical treatment for a compromised physical condition, “Law enforcement officers should be especially sensitive to the likelihood that a particular use of force may do more harm than good.”

The court ruled that due to the subject’s compromised physical condition, the officers should have known he was gravely ill and was likely to have a diminished mental capacity. This factor weighed against the officers when determining reasonableness of the officers’ decision to use a CEW and wrestle him to the ground.

Furthermore, the first two Graham factors also weighed against the officers since the subject committed no crime and he posed no threat to the officers or anyone else but himself. Therefore, in this case the only governmental interest was that of protecting the subject from himself. Previous decisions have found the use of a CEW constitutes “a serious use of force” which cannot be justified against someone who is only passively resistant, or has committed a misdemeanor and is not posing a threat to the officers or others. In this case, the subject committed no crime whatsoever.

The 4th Circuit decision

A similar decision was reached by the U.S. 4th Circuit Court of Appeals on January 11, 2016 (Armstrong v. Village of Pinehurst) which involved similar facts and involved a subject who was “a stationary, non-threatening, mental patient who resisted being taken into custody by passively clinging to a signpost while seated on the ground.” In this case, officers again used a CEW in Drive-Stun mode on a subject who had not committed any crime (let alone a serious crime).

This subject had been diagnosed with bipolar disorder and paranoid schizophrenia, and had not been taking his prescribed medications. He had been displaying odd behavior which included jabbing holes in his leg with an ice pick, “to let the air out.” His sister took him to a mental health facility but he “eloped from the facility” so law enforcement was called. A physician at the facility had determined the subject was a danger only to himself and prepared paperwork for an involuntary commitment.

When the officers found the subject he was clinging to a stop sign post and he defied repeated requests to let go. After only about 30 seconds of dialog, an officer used his CEW in drive-stun mode repeatedly which only increased the subject’s resistance. It took five officers to pry him from the post and he was handcuffed prone on the ground. He continued to struggle until at one point, he ceased moving at all. Resuscitation efforts were unsuccessful and he died. The medical examiner ruled the cause of death as excited delirium.

The 4th Circuit Court of Appeals also ruled in this case, that a person’s mental health status should be a factor to consider when determining proper use of force. The court stated that employing a CEW, in any mode is “serious injurious force” and is not appropriate when dealing with suspects who are not “serious threats or posing an immediate danger to anyone besides themselves.”

It should be noted that the term “serious injurious force” is a term not previously recorded in any federal court case, according to attorney Mike Brave, legal counsel for TASER International.

Points to consider

It is obvious that many courts are taking a dim view of using force on persons who have committed no crime. They are taking an even dimmer view if it involves a person who is mentally ill or appears to be mentally ill. Using a CEW on persons in these categories has become increasingly more risky from a civil liability perspective, and law enforcement agencies need to inform their officers of these cases and train to avoid using any significant force on persons who pose no threat to officers or others.

Persons who pose only a threat to themselves should be treated with extreme caution in regards to using physical force to “save themselves from themselves.” An analogy would be an officer using deadly force to stop a person from committing suicide. While this would be an extreme example (and clearly not legally justified) it demonstrates the logic courts are using to reach these decisions.

Law enforcement needs to take note of these cases and recognize, “the times, they are a changing.” While it goes against what many of us have practiced for years in regards to helping others, even if it meant using physical force, the fact of the matter is, doing so can place you in jeopardy of being sued for violating a person’s civil rights.

The days of using cops to enforce medical protocols such as hospital policies, paramedic policies are pretty much over. Physically forcing someone to go to a hospital or mental health facility when they are only a danger to themselves and have not committed a crime may very well put you in a trick bag. It would be desirable to use verbal persuasion techniques, such as those promoted in CIT classes whenever possible.

As an example, I was sent to assist our paramedics on a call where an adult male had fallen off his bicycle. He received some minor scrapes but nothing serious. He had been drinking but otherwise had no indication of being intoxicated. He had already summoned his mom to come pick him up and he was refusing to go to the hospital. The paramedics initially were OK with releasing him and intended to have him sign a standard liability release form, which he was willing to do. When the medics called the ER and spoke with the on-duty physician, he advised since the man had been drinking he would have to be brought to the ER. The doctor would not allow the man to be released at the scene.

When the paramedics informed me of this I told them if they wanted to force him to go to the hospital they were on their own as I had no legal authority to force the issue. I then cleared from the call and the paramedics wisely did the same. While I’m sure the doctor was not happy with this, had I forced the man to go to the hospital under these circumstances, and had it led to using physical force, I would have been at great risk for being sued for a civil rights violation. The doctor was in no position to indemnify me for my actions-I was responsible for my own actions, notwithstanding the orders of a physician.

Training issues

In addition to providing police officers with crisis intervention team training, agencies should also be providing training on the topic of “excited delirium.” Not doing so places you at risk of being successfully sued for a failure to train claim. Both of the cases in this article involved subjects who were displaying signs of mental illness and “excited delirium.” It is important for first responders to have an awareness of the problems and solutions to these types of situations.

While both of the cases mentioned in this article involved the use of a CEW, an argument could be made that in reality, any use of force that involves any infliction of pain could apply to these situations. Therefore, you should consult with your agency’s legal adviser for direction on how to respond to these types of cases.

Sergeant Kevin Sailor is a 36-year veteran of the Westminster (Colorado) Police Department and has served assignments in Patrol, Traffic and Investigations. He also served four years in the U.S. Air Force as a Law Enforcement Specialist. Sergeant Sailor is a Senior Master Instructor for TASER International. He has traveled about the country teaching TASER Instructor classes and performing other duties for TASER International. He also is used as a court expert witness for law firms defending police use of the TASER and other use of force.

Contact Kevin Sailor