Editor’s note: This article originally appeared in The Chief’s Chronicle; New York State Association of Chiefs of Police. Reprinted with permission.
In prior articles, I have discussed the application of the five pillars of organizational risk management – People, Policy, Training, Supervision and Discipline – to the duty to intercede and root cause analysis in day-to-day operations. The pillars work together to provide overlapping layers of protection that can keep officers and the public safe while mitigating risk. In this article, I will address the difficult and delicate balance that must be made when determining whether something should be incorporated into policy or training.
A recently published study and article titled, “A comparative interrupted time-series assessing the impact of the Armstrong decision on officer-involved shootings” serves as the inspiration for this article.  The decision referenced in the title is the 4th Circuit Court of Appeals’ decision in Estate of Armstrong ex rel. Armstrong v. Village of Pinehurst (Armstrong), which dealt with the application of a controlled energy device (CED) on a person with mental illness who was in crisis. 
The two hypotheses proposed by the authors were:
- States in the 4th Circuit will experience a statistically significant increase in officer-involved shootings following Armstrong.
- Comparison states will not experience a statistically significant increase in officer-involved shootings following Armstrong. 
The authors used a database of violent firearm-related incidents and compared the shootings in the 4th Circuit to those of specified comparison states for the period of January 2014 to October 2021. They found both hypotheses were supported by the data.
Before we go any further, we need to review the Armstrong case.
Armstrong v. Pinehurst
Ronald Armstrong had been diagnosed with paranoid schizophrenia and bipolar mental illness. After he stopped taking his medication, his sister persuaded him to self-admit to a hospital; however, Armstrong left the emergency department prior to completing the admission process.
A doctor began the process for an emergency mental health commitment order, and hospital security called local police. Responding police officers found Armstrong wandering in traffic at an intersection near the hospital. An officer persuaded Armstrong to move out of the road. Armstrong then started eating grass and dandelions, chewing on a “gauze-like substance” and extinguishing cigarettes on his tongue.
Up to this point, all was relatively calm. But then the officers learned the commitment order had been completed and they immediately tried to take Armstrong into custody. His sister stood nearby, asking Armstrong to go with the officers. Armstrong, a large man (5’11”, 262 lbs.), wrapped himself around a signpost and held fast. The police officers could not pry him from the post.
Only 30 seconds after telling Armstrong they had a commitment order, an officer warned Armstrong he would use a CED if Armstrong did not submit. Armstrong did not heed the warning. The officer deployed his CED in “drive stun” mode five times in approximately two minutes. Armstrong still held fast.
Two hospital security guards joined the three police officers in prying Armstrong from the post and placing him in handcuffs and leg shackles. They placed him face down on the ground. A few moments later, Armstrong’s sister noticed Armstrong seemed unresponsive, and she asked the officers to check him. Armstrong had turned blue, and he did not seem to be breathing. He received immediate medical attention but was pronounced dead a short time later at the hospital.
The district court granted qualified immunity to the officers in the subsequent lawsuit. Qualified immunity protects officers who reasonably believe their actions were lawful under clearly established law. The court of appeals ruled that the force used by the officers was excessive but affirmed the granting of qualified immunity because it determined the law was not clearly established.
While Armstrong was clearly resisting the officers’ efforts to take him into custody pursuant to the commitment order, the court determined the level of force used – five CED applications – was excessive after doing a Graham objective reasonableness analysis. For sake of brevity, I will not describe the full analysis in detail, instead focusing on points relevant to this article.
First, the court reasoned that Armstrong’s mental health was one of the facts and circumstances that must be considered by an officer. The tactics used to take an unarmed, emotionally disturbed person into custody, the court noted, are “ordinarily different” from the tactics an officer uses when attempting to “subdue an armed and dangerous criminal who has recently committed a serious offense.” Second, the court took into account that in creating the commitment order, a doctor determined Armstrong was only a danger to himself. Using force likely to harm him would be contrary to the government’s interests in initiating that seizure.
The court acknowledged that, under these circumstances, some degree of force would be objectively reasonable to prevent the risk of Armstrong running out into the roadway. But the fact that the officers only waited 30 seconds for him to comply with their commands also weighed on the decision. Immediately using the TASER device was not a proportional response under these circumstances: “Noncompliance with lawful orders justifies some use of force, but the level of justified force varies on the risks posed by the resistance … even purely passive resistance can support the use of some force, but the level of force … is dependent on the factual circumstances underlying that resistance.”
The court reasoned that while the officers did not have any constitutional duty to stand idly by and hope that Armstrong would change his mind, there was no urgency during the incident. Armstrong was stationary, non-violent, and surrounded by people willing to help him return to the hospital. Finally, one additional quote from the court will, in my opinion, help to explain how agencies reacted to the Armstrong decision and the findings of the study:
A taser, like “a gun, a baton, … or other weapon,” …, is expected to inflict pain or injury when deployed. It, therefore, may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk and that is reasonably likely to be cured by using the taser. The subject of a seizure does not create such a risk simply because he is doing something that can be characterized as resistance – even when that resistance includes physically preventing an officer’s manipulations of his body. (emphasis added)
As discussed previously, the authors of the study confirmed their hypotheses – the number of officer-involved shootings increased in the 4th Circuit after the Armstrong decision while there were no statistically significant increases in the comparison states.
The article also noted changes made by police agencies within the 4th Circuit post-Armstrong, including:
- Almost all respondents to a survey indicated they placed CEDs higher on their “force continuums”
- Some law enforcement agencies completely removed their CEDs from their officers
- CED use significantly decreased while firearm threats (officer pointing a firearm) significantly increased
If these findings are a reaction to Armstrong, then they indicate, in my opinion, an overreaction to the Armstrong decision and may be indicators of inadequate training in response to it. To remove CEDs from officers because of Armstrong is disturbing and unjustified.
The following quote from the article was also bewildering to me:
The findings support hypothesis one which suggested that Armstrong would be associated with increases in OISs in the Fourth Circuit states. Ho et al. (2007)  found that CEDs were used in thousands of use-of-force incidents during which a firearm would have been legally justified. Thus, when the option to use CEDs is restricted only to encounters that pose an ‘immediate danger,’ officers may more often resort to the use of firearms and thus more OISs.
Think about this. Prior to Armstrong, a study showed officers used CEDs in thousands of use of force incidents where a firearm would have been justified. But when you restrict the use of CEDs to only situations that pose an “immediate danger,” the officers will instead use their firearms. Huh. If the use of a firearm would have been justified, then the officer or others would have necessarily been in serious “immediate danger” and the use of a CED would have been justified even after Armstrong.
This is not intended to be critical of the study authors; without such a study this issue would have remained hidden. But their findings lead me to conclude that the impact Armstrong had on these agencies may have resulted from a lack of understanding of the interpretation of case law and a need for more thorough training.
The logical implication of this study is that, at least in some parts of the country, Armstrong led to more people being shot by the police. This outcome was almost certainly not what the court intended.
The courts under our constitution are limited to the “case of controversy” requirement, which requires an active dispute over federal or constitutional law, among other things. When a court has jurisdiction over a case, the court is limited to determining how the specific facts apply under specific laws implicated by it. Yes, this means a court can create law – case law – to a degree, but it is limited to the law and facts implicated in any given case. In other words, the law of a particular case is only binding on future incidents if the facts of the future case are the same or very similar. This jurisdictional limitation is why courts sometimes grant qualified immunity – they determine the law was not clearly established as to the specific facts of the case they are considering.
The law created by a case is found in the court’s decision. Sometimes, judges will go beyond the decision and author dicta, which are opinions or comments not necessary to decide the case at hand. While dicta can provide some guidance to officers on how the court may decide future cases, they are not legally binding.
So, what did the 4th Circuit do in the Armstrong decision? They applied the objective reasonableness standard of Graham v. Connor to the specific facts of the case. And they determined that under those specific facts, the use of the CED was unreasonable force. That is it. They did not create a new law restricting police officer use of CEDs, instead they applied the longstanding Graham criteria and then expressed in dicta what they felt would justify the application of a CED in future qualified immunity proceedings. A case could be very similar to Armstrong, but have one fact different, and that might be sufficient to distinguish it and make Armstrong inapplicable.
A good example of this can be found in the 4th Circuit holding in Cansler v. Hanks.  Cansler had stolen a pair of sunglasses and was confronted by Officer Hanks. Hanks ordered Cansler to remove his hands from his pockets, revealing what appeared to be a pocketknife. Hanks grabbed Cansler’s right hand and moved Cansler against the police car. This led to some jostling between the men and Cansler pulled his hand free from Hanks. Hanks then backed away from Cansler and pulled his CED. Upon seeing the CED, Cansler raised his hands and turned away. But then Cansler lowered his hands and Hanks, believing Cansler was going to retrieve the knife, applied the CED to his back.
Cansler’s attorneys wanted the district court to give a jury instruction that would capture the essence of the Armstrong “exigency that creates an immediate safety risk” language as the applicable law. The district court refused to do so. This was upheld by the 4th Circuit, which distinguished the facts of Armstrong and emphasized that the law of Graham was not changed by Armstrong: “Put succinctly, neither Armstrong nor Yates established a rule for taser usage that is applicable to every situation. Although Instruction No. 7 could be a correct legal statement in limited circumstances, Armstrong and Yates do not usurp a trial judge’s obligation to give a jury charge that complies with Graham.”
Policy or training? Policy and training
Immediately after Armstrong was decided, I included it in my training classes – not just as a CED case but as an example of a use of force analysis under Graham. It arguably would have been the same if the officers pepper sprayed him or used a baton. The key factor to me was the impact the commitment order had on the officers. As soon as they learned it had been signed, they immediately discontinued any attempt at verbal persuasion, which had worked so far, and instead resorted to orders and then the CED on a person in obvious crisis.
So why not just put the exact language from the Armstrong decision – CED use requires an exigency that creates an immediate safety risk – directly into policy, especially if you are in the 4th Circuit?  Consider that, according to this study, inclusion of that concept in continuums may have driven the increase in officer-involved shootings. I believe this is an example of how including continuums in policy can be confusing. Likewise, simply putting “words” in a policy may not provide sufficient guidance. Objective reasonableness under Graham does not fit into neat categories; every case is different, with multiple variables. If officers don’t understand the true issues, then using a continuum as a fix will leave officers and the public at a disadvantage. How can you try to capture all possible scenarios into a concise policy statement or some type of “if – then” continuum?
The Armstrong case also included language in a footnote explaining that Graham’s test is dependent on the facts and circumstances of each particular case. The footnote went on: “Our holding, therefore, does not rule out the possibility that taser use could be justified in some cases where an arrestee’s non-compliance could be described as non-violent.” Now, try to reconcile this quote with the “immediate safety risk” language in clear and concise policy language that will answer all an officer’s questions.
Thorough and repetitive training should be used to supplement policy language and help officers understand the need to assess all the facts and circumstances of each incident they face.
The five pillars of organizational risk management act together to support sound officer decision-making. The long-term impact of the Armstrong holding serves as an example of how important this understanding is.
References and notes
1. Boehme H, Kaminski R, Leasure P. (2022) A comparative interrupted time-series assessing the impact of the Armstrong decision on officer-involved shootings. Police Practice and Research, 23(5):614–622.
2. 810 F.3d 892 (4th Cir. 2016); see also Yates v. Terry, 817 F.3d 877 (4th Cir. 2016). The 4th Circuit is comprised of Maryland, North Carolina, South Carolina, Virginia and West Virginia.
3. The comparison group consisted of geographically proximate states and consisted of Georgia, Kentucky, Tennessee, New Jersey, Ohio and Pennsylvania.
4. Graham v. Connor, 490 U.S. 386 (1989).
5. Ho JD, Dawes DM, Johnson MA, et al. (2007). Impact of conducted electrical weapons in a mentally ill population: A brief report. The American Journal of Emergency Medicine, 25(7),780–785.
6. 777 Fed.Appx. 627 (4th. Cir. 2019)
7. Policy changes based on law should only be made in consultation with your legal advisor. Nothing in this article should be considered legal advice.