Police use of force: Managing risk and mitigating harm
When it comes to police use of force tactics, our focus must be on managing risk and mitigating harm, regardless of the latest scientific study
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 written about the concepts of the duty to intercede and the integration of proper root cause analysis into the five pillars of organizational risk management. In this article, I will build on those concepts while focusing on trends in recent case law dealing with use of force incidents. These trends also provide an opportunity to explore the impact that certain medical or scientific studies should – or should not – have on policing policies and practices.
Aguirre v. City of San Antonio
The facts and holding of Aguirre v. City of San Antonio will set the stage. Police received multiple calls of an apparent mentally disturbed man walking down the center of a busy divided highway, waving his hands. The first officer on the scene drew her firearm and ordered Aguirre to “come here” and then threatened, “I’m going to shoot you, mother f—-r.” Aguirre ignored the command and kept walking alongside a 3-foot-tall concrete median. Officers approached him, pointing a gun and a TASER device at him. Aguirre stopped and placed his hand on the concrete barrier, and the officers noticed fresh needle marks on his arms.
Three officers grabbed Aguirre, handcuffed him, lifted him over the barrier and dropped him on his head. They then lifted him and placed against him a police car with his head and upper body pushed over the hood. While not visible in the video, at some point Aguirre must have been pushing back, because five officers began struggling with him, eventually bringing him to the ground face-first.
For approximately 5.5 minutes, Aguirre was held down on the ground with pressure to his arms and back, his legs held bent at the knees. After officers noticed he was no longer breathing or responsive, they turned him over and removed the handcuffs. Sternum rubs and “similar techniques” failed to revive him, so officers requested EMS to respond; 4.5 minutes after rolling Aguirre over, the officers began CPR. The attempt was unsuccessful, and Aguirre died.
Aguirre’s widow and estate sued for, among other things, excessive force. Their medical expert concluded restraining Aguirre face down with his hands behind his back and his legs bent onto his buttocks in a hogtie-like position was the cause of Aguirre’s death. The expert also concluded the needle marks indicating recent drug use made this restraint even more dangerous.
After analyzing the case under the Graham factors, the court ruled that genuine issues of fact existed material to whether the officer’s use of force was excessive, and it would be up to a jury to decide the issue.
The court also considered whether the force used could amount to the use of deadly physical force because there was evidence – the needle marks – of drug use. The court ruled “Taken in the light most favorable to Plaintiffs, [the] evidence indicates that a reasonable officer in the Officers’ position would have known that applying the maximal-restraint position to Aguirre and holding him in this position for an extended period posed a substantial risk of causing his death or serious bodily injury.” The lack of any visible resistance of Aguirre in the video footage, the fact that numerous officers surrounded him, and the fact that traffic had been restricted all weighed against any justification of applying a prolonged prone maximal-restraint position.
The next step in the qualified immunity analysis is to determine if the right to be free from excessive force under these circumstances was clearly established: “The law is clear that the degree of force an officer can reasonably employ is reduced when an arrestee is not actively resisting.”
We now reach the critical point of the decision in relation to the purpose of this article: “… at least five other circuits have held that, even in the absence of a previous case with similar facts, ‘it is clearly established … that exerting significant, continued force on a person’s back while that person is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force” [emphasis added].
There is a lot to this case, but for the purposes of this article I want to focus on the highlighted language quoted above, which is consistent with rulings in multiple circuit courts – continuing to apply pressure to a person’s back in the prone position after they have been subdued and/or incapacitated constitutes excessive force. Recent Conducted Energy Device (CED)-related cases have also led to similar results – the law is clearly established that a person has a constitutional right not to have a CED applied when they are no longer actively resisting.
Where Law and Science Intersect
But wait a minute, aren’t there scientific studies and experts that say the prone restraint and CEDs will not cause death? And aren’t there also statistics showing the percentage of police-citizen contacts where force (beyond compliant handcuffing) is used is extremely small? Finally, aren’t there also related statistics indicating the percentage of people who die at the hands of the police is only a fraction of a percent?
The answer to those questions is yes, yes, and yes. Civil suits and criminal prosecutions of police officers usually result in a battle of the experts. Each side hires experts to opine on various topics to either place blame or deflect it. But here lies the potential problem. This all occurs after incidents are over. I will not cite any of those studies in this article because they are not necessary to this discussion.
Yes, it is important for contemporary law enforcement leaders to be aware of research pertaining to law enforcement actions. But to rely on them for modifications to training and/or policy is risky. Suffice it to say you cannot just read an abstract of a publication and even begin to think you know enough about the study to draw definitive training and policy conclusions. At a minimum, an understanding of study methodology and the limitations of such controlled studies (e.g., using subjects who are not under the influence of drugs and do not have comorbidities) are required to properly interpret the findings.
For me as a police trainer, and for Lexipol as a policy provider, we cannot rely on scientific conclusions that may be contested continuously in courtrooms across the country. Instead, we need to focus on what is legally required and the risk created by certain types of incidents.
I will first focus on the simplest of the two – what is legally required. The objective reasonableness standard of Graham v. Connor requires that any police use of force be reasonably necessary at its inception and continued application. Once a person is no longer an apparent threat to the officer or others, the use of force must be stopped or modified as soon as is practicable. This standard applies to any use of force, regardless of whether the person is injured. Death or serious injury is not a prerequisite to a violation of a constitutional right.
Now to the issue of risk created by these types of incidents. I do not know if extended prone restraint or CED applications can or cannot “cause” deaths. Instead, I will take a simpler and more commonsense approach to the issue. Do an internet search inquiring how many people die every year while shoveling snow. You will likely find the results to be about 100 per year. Why? Common explanations are that people suffer heart attacks while doing this strenuous work. They may have gone directly from a sedentary status to extreme exertion, which can be exacerbated by cold weather. I do not need to get into a debate over whether the shoveling killed the person or whether it was a heart attack. Or whether other pre-existing or individual risk factors contributed, such as obesity, age, or excessive consumption of alcohol or drugs prior to the activity. Could the person have had a heart attack anyway? Yes, they could have. But the point here is the sudden strenuous activity increases the risk to the person, which is identifiable.
It seems obvious a similar increased risk could apply when a person struggles with police – either consciously choosing to fight or because they are in physiological or psychological crisis. The risk is likely higher for the latter category – individuals experiencing extreme agitation, often fueled by the use of unregulated drugs. It is critical for officers recognize the symptoms of altered mental status and agitation and discontinue or modify the force or control technique applied as soon as it appears no longer necessary. For subjects who consciously choose to fight with police, medical attention is warranted at any signs of injury, distress or complaints from the person. For those in a state of severe agitation, medical attention must be requested as soon as the risk is identified, not waiting until the person is subdued and in apparent distress, as happened in the Aguirre case.
The bottom line: Medical and forensic experts will continue to debate the causes of and contributors to in-custody death. New research and studies will come and go, but they do not have much immediate value to the officer during such an encounter. To clarify, science does have value in helping to guide and develop training and procedures for officers to follow. Examples include science involving human performance under stress and how human beings learn and retain information. Both can help develop training programs to prepare officers to make better decisions. By contrast, causational factors of in-custody deaths are so diverse and case-specific, the training and procedure value is limited. Following the law and understanding the risks will help mitigate the harm, which is our ultimate goal.
Root Cause: Why?
Why does it appear that officers sometimes continue to apply force even after the need for the force is over and the person is no longer resisting? The case law across the federal circuit courts makes it clear this is a continued problem. Why? While this is a self-assessment all leaders should make, I propose three possible reasons:
Extreme emotional arousal due to the “dump” of adrenaline and other hormones: The flood of hormones can impact an officer’s perceptions of the event and make it difficult to immediately dial down their response. This physiological condition may apply in the following reasons as well.
- The difficulty officers can face in determining when the person effectively stops resisting: When an officer has a person down on the ground in the prone position, and the person keeps attempting to push up, are they “resisting” at that point or are they trying to get the pressure off them so they can breathe? That is a question multiple courts have asked, especially when there are two or three officers on top of a person. And they will typically answer the question in favor of the plaintiff.
- A lack of skill by the officers involved: Officers may not have the knowledge or faith in their skills to transition to a different restraint position. If your agency has not focused in defensive tactics training on transitioning from a prone restraint to an alternative tactic or position, then you need to do so. Moving the person on their side or sitting position or concentrating on controlling the person’s hips and legs instead of their back are, or should be, a part of any contemporary defensive tactics training. Another important training issue can be seen in the Aguirre video. It appeared that every officer on the scene felt it necessary to become part of the physical intervention. This is not necessary and can be counterproductive as the officers may actually be fighting against each other. Having multiple officers on a scene can be beneficial, but once it becomes necessary to go hands on with a person, contemporary training emphasizes one- and two-officer takedowns and restraints.
This is where back-up and duty to intervene are so critical. As other officers arrive on scene, they should be alert to the possibility of the above three scenarios and be empowered to intercede and “tap out” the involved officers if needed. Use of force situations are extremely difficult. It is not a sign of weakness to need help and have another officer intervene to help both the officer and the person involved.
Do not get sidetracked by scientific studies. Instead, focus on doing the right thing for the right reason by following the law, properly accounting for the increased risk to the person, and monitoring the situation for signs things are going in the wrong direction. Sadly, even when officers do everything right, a person may still die after a violent encounter. Then the lawsuits may be filed, and the experts may battle. But for the officers involved, there should be some comfort in knowing you did everything you could.
References and Notes
1. 995 F.3d 395 (5th Cir. 2021). Video of the incident is linked through a footnote within the case at https://www.ca5.uscourts.gov/opinions/pub/17/17-51031.mp4.
2. citing Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, (2004).
3. The five cases cited by the court were: McCue v City of Bangor, Maine, 838 F.3d 55 (1st Cir. 1016); Weigel v Broad, 544 F.3d 1143 (10th Cir. 2008); Champion v. Outlook Nashville Inc., 380 F.3d 893 (6th Cir. 2004); Abdullahi v. City of Madison, 423 F.3d 763 (7th Cir. 2005); and Drummond ex rel Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003). For another recent case, see Lawhon v. Mayes, UNPUBLISHED 2021 WL 5294931 (4th Cir. 11/15/2021). (Officers held Lawhon in a prone restraint for three additional minutes after he became motionless and silent. Unpublished opinions are not binding precedents within the circuit, but this does not mean they do not have value. The reasoning of the court and the reliance on previously decided precedent are relevant to learning and improving police response.)
4. Browning v. Edmonson City, KY, 18 F.4th 516 (6th Cir. 11/17/2021); Dorsey v Sokoloff, UNPUBLISHED 2021 WL 5275535 (4th Cir. 11/12/2021).
5. For additional information, see the Lexipol webinar Agitated Subjects & Ketamine: Working Together to Enhance Safety.