Police Use-of-Force

In this episode, I talk about the laws granting the police the authority to make arrests; and the circumstances under which police can use force when making an arrest.  

Transcript

SPEAKER_00 0:03

Are handcuffs really necessary for every arrest? Why don't the police shoot people in the leg or another non-deadly area of the body? Why do police make some people lie on the ground before handcuffing them? Hello, and welcome to Inside the Criminal Process, a podcast where I'll discuss and explain the criminal justice system in America using real-life examples and true crime cases. My name is Scott. I'm a 29-year veteran law enforcement officer and an attorney. I've worked as a patrol officer, a crime scene investigator, a field training officer, a detective, a parole officer, an investigator, a polygraph examiner, a crisis negotiator, and an administrator. I've also taught college-level criminal justice classes. Today I'm going to talk about the use of force by police officers, but I did want to mention something I missed in the last episode. When I said that complexity is due to not having a suspect, that's not the only thing that can cause complexity in an investigation. Whenever there's a case with little or no evidence, no independent witnesses, he said she said cases, etc., and fraud cases can be very complex even if there is a suspect. It can take forever to go through accounting and other records for fraud cases. I once did a case where I had to gather six months' worth of data on time on the timesheet fraud case. I had to pour through a ton of records, time clock records, log sheets, payroll records, work schedules, access logs, et cetera, to determine if people were submitting fraudulent time cards. Even so, after all that work, you still have to prove that there's an intent to defraud by the people that are committing the fraud. In my case, it was basically the employer had really poor business practices when uh managing timesheets and time records. So the district attorney declined to prosecute the case because of that. Uh we couldn't prove that the employees were purposefully incorrectly completing their timesheets. I also mentioned a case in which I had to analyze custody reports, locations of inmates, phone records, visiting records, et cetera, to try and prove a connection between inmates who were all involved in a scheme involving fraudulently acquiring student loan money. Those cases can be incredibly tedious, time consuming. You have to have lots of patience and analytical prowess to work those cases. If you like that kind of work, forensic accounting would be perfect for you. So police use of force is governed by state and federal constitutions, state and federal law and police agency policies. Individual departments can be more restrictive in their policies than the law, but they can't be more lax than the law requires. State statutes govern use of force by local police and sheriff's deputies. In this state, Title 16 of the revised state statutes is known as the Code of Criminal Procedure, and it defines and outlines police powers, duties, responsibilities, and authority. Title 16 identifies who has police authority within this state, and it includes local police, investigators for state agencies, federal officers, specialized police, like transit officers, Borthington Northern Railroad Police, etc. Section 163101 is titled Arrests, When and How Made. And it basically states that an arrest can be made on any day at any time, day or night. It says all necessary and reasonable force may be used in making an arrest. And it says all necessary and reasonable force may be used to effect an entry upon a building or property or part thereof to make an authorized arrest. Section 163102 basically covers arrest by a peace officer, and it says a peace officer may arrest someone when there's a warrant commanding the arrest of that person. Any crime has been or is being committed by such person in the officer's presence, or the officer has probable cause to believe that an offense was committed and probable cause to believe that the offense was committed by the person to be arrested. And I went through probable cause in the last episode. Title 18 of this state's statutes is titled the Criminal Code, and it contains guidelines for use of force by peace officers. And I'm going to go through some of those guidelines. Basically, it says peace officers in carrying out their duties shall apply nonviolent means when possible before resorting to the use of physical force. So, hey, you're under arrest. Please turn around, put your hands behind your back, and and hopefully they comply. Right? A peace officer may use physical force only if nonviolent means would be ineffective in effecting an arrest, preventing escape or preventing an imminent threat of injury to the peace officer or another person. So if they're saying, nope, I'm not gonna go. You're gonna have to, you're gonna have to fight with me. Um you're gonna have to use force to get them into custody. Title 18 also covers when force is used. It says a police officer shall not use deadly physical force to apprehend a person who is suspected of only a minor or nonviolent offense. The police shall only use a degree of force consistent with the minimization of injury to others. The police need to ensure that medical assistance is rendered to any injured or affected person as soon as practicable. And police must ensure that any identified relatives or next of kin of persons who have sustained serious bodily injury or death are notified as soon as practicable. So this came up, I think it was several years ago. A family of somebody who was killed by the police saw it on the news before they were notified by the by law enforcement. And obviously it was it was traumatic. So they added this into the statute. Several changes in laws and police reform laws came about in 2020. Can you think of any reason why that happened? It was because of the George Floyd incident. So prior to George Floyd, agencies generally allowed, the agencies I worked for allowed rear-naked choke or vacuum neck restraint holds. Those are different than a choke hold. So with a vascular neck restraint, there's no pressure placed on the trachea and no interference with somebody's ability to breathe. The vacar neck restraint is a compression of the carotid artery, which cuts off blood flow to the brain and causes unconsciousness. So it was allowed in the agencies that I worked for, but it it was a pretty significant use of force. It wasn't quite deadly force, but there had to be a significant reason you needed to use that level of force. Uh none of the agencies that I worked for allowed chokeholds where you're putting putting pressure on the trachea. And Title 18 actually says now a peace officer is prohibited from using a chokehold upon another person. And it describes or defines chokehold. It says chokehold means a method by which a person applies sufficient pressure to a person to make breathing difficult or impossible, and includes but is not limited to any pressure to the neck, throat, or windpipe that may prevent or hinder breathing or reduce intake of air. It then goes further and says chokehold also means applying pressure to a person's neck on either side of the windpipe, but not to the windpipe itself to stop the flow of blood to the brain via the carotid arteries. So Title 18 also covers mechanical restraints and what they're talking about here, it says a physical device used to involuntarily restrict movement of a person or the movement or normal function of a portion of a person's body. So we had they were called hobbles, it was just a length of rope with clips on the ends. And if you had somebody who was really uh disruptive and just was absolutely not gonna go, and they kept fighting even with the handcuffs on, um, we could wrap the rope around their their ankles and pull those behind their back and hook it to the handcuffs. So it was like uh we refer to it as being hog tied, but it was it was actually it was just hobbling a person. So that's what they're talking about when they say mechanical restraint. Um they're also talking about handcuffs and stuff of that nature as well, but they talk about the prone position, uh, and it says it's a position where a person is lying on a solid surface with the chest and abdomen positioned downward, even if the person's face is turned to the side or the person has one shoulder lifted. So the the statute says prone restraint means a use of physical force, including but not limited to the use of a mechanical restraint in which the person who is being restrained is in a prone position. So that's exactly the position that that George Floyd was in. They also define a recovery position that says a mean that means any position other than a prone position that allows the person to breathe normally. So the statute also requires that that agencies adopt written policies and procedures concerning the use of prone position and prone restraint by peace officers, sheriff's deputies, uh state patrol officers. And it says that those agencies must have procedures publicly accessible on the on their website. And if they don't have a publicly accessible website, they they must make the policy and procedures publicly available upon request for for the prone and the recovery position policies. The statute also talks about when and how to request medical aid for the use of force involving prone restraint, when to get medical clearance for use of force involving prone restraint, when there are injuries or complaints of injuries, how and when appropriate medical within the scope of a peace officer's training should be rendered rendered for any use of force involving prone restraint, and how and when to appropriately and safely transition any person placed in a prone position into a recovery position as soon as practicable. And and what they're talking about here is positional asphyxiation. That's the term that that's used by law enforcement when you have somebody handcuffed and they're placed on their face in a prone position or on the front on the on their belly and chest. Um positional asphyxia is it's very hard to breathe for some people in that position, especially when you're restrained and you have your your hands behind you. So that's what they're covering here, and they just like they're saying, there's no reason, it's not necessary typically to have somebody in that position for an extended period of time. There's no reason you can't have them roll to their side and then sit them up and so that they're in a seated position, and it's it's it's easier for them to breathe in that position. So there's a lot of different uh requirements that people have to uh to follow when they're handcuffed, when somebody in handcuffs is placed in a prone position. And I don't know because I don't work on the street and I haven't in a while. Um, but I'm assuming there's a lot of training that goes along with this. And people are taught to get somebody in a seated position as soon as possible. Also, in this statute, it talks about deadly force. It says a peace officer is justified in using deadly physical force to make an arrest only when all other means of apprehension are unreasonable given the circumstances. And the arrest is for a felony involving conduct including the use or threat used of a deadly of deadly physical force. The suspect poses an immediate threat of death or serious bodily injury to the peace officer or another, and the force employed does not create a substantial risk of injury to other persons. So this is this has limited when you can use deadly force, and these these requirements must be present in order to use deadly force. It also says a peace officer shall identify himself or herself as a peace officer and give a clear verbal warning of his or her intent to use firearms or other deadly physical force with sufficient time for the warning to be observed, unless to do so would unduly place peace officers at risk of injury or would create a risk of death or injury to other persons. So that's not hugely different from what it said prior to 2020. Um, I mean, they want you to give warnings, identify yourself as a peace officer, let the person know that that who you are and what you're about to do. But it also adds in there, like if somebody has a gun out and they're shooting at you, you don't have time to tell them, hey, hey, hey, I'm a police officer. I'm gonna use deadly physical force on you. So it does say, unless doing so will create a risk of injury or a risk of death or injury to the person, any other person or the police officer. So, notwithstanding any other provision in this section, the statute goes on a peace officer is justified in using deadly force if the peace officer has an objectively reasonable belief that a lesser degree of force is inadequate, and the peace officer has objectively reasonable grounds to believe and does believe that he or another person is in imminent danger of being killed or receiving serious bodily injury. This statute also applies anytime a peace officer has directed somebody to assist them in effecting an arrest, it applies to that person as well. It says that those people who've been directed by police to assist them, they're there they must use reasonable and appropriate force uh to carry out the peace officer's direction unless they know the arrest or prospective arrest is not authorized. A person who's been directed to assist a peace officer under circumstances listed above, the they may use deadly physical force to an effect an arrest or prevent escape only, and it's the same thing. When that person reasonably believes that the force is necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force, or he's directed or authorized by the peace officer to use direct, to use deadly physical force, and does not know if that happens to be the case that the peace officer himself is not authorized to use deadly physical force under the circumstances. And you know, when they when they make these laws, when they write these laws, there's so much input that goes into these. Um they're just they want to cover everything, every possible thing that could happen. And so the stuff sounds redundant. It's very hard sometimes to to wade through this stuff. And um you just kind of have to take it piece by piece and look at it. But and and in departments, they've both the departments that I worked for, you had to you did annual training. So the county attorney, the district attorney uh would come in, or the or the city, city attorney would come in and um and give you a legal update, and they would go through all this stuff and tell you, okay, here's what's required of you now. So make sure that you're you're doing all this stuff. So it's really no different. Uh deadly physical force is really no different than what just regular citizens have, right? If you fear death or or or serious bodily injury, and that's a reasonable fear at the time, you have you you have uh you have a right to use deadly physical force. Um now you're gonna have to obviously articulate why you felt you needed to use that force. Um, and it's gonna be it's gonna be a long process with the the police, the DA's office, and any civil cases that uh that you end up going through if you end up taking somebody's life. The statute also covers, it says a guard or peace officer in a detention facility is justified in using deadly physical force when he reasonably believes it necessary to prevent the escape of a prisoner convicted of, charged with, or held for a felony or confined under the maximum security rules of any detention facility. And then it defines what a detention facility is. Um but that's that kind of extends to uh escape of prisoners from detention facilities. You don't need to articulate or fear serious bodily injury or death in those situations. But you do have to know what the person's being held for. The statute goes on to it includes uh it basically says a peace officer who's the handler of a law enforcement officer. So, yeah, this this is interesting, and I I can only imagine this came up because of a specific incident. It says a peace officer who, in pursuance of such officer's law enforcement duties, witnesses another peace officer, and it specifically includes a peace officer who is the handler of a law enforcement animal, so a canine handler, in pursuance of such other peace officer's law enforcement duties and carrying out an arrest of any person, placing any person under detention, taking any person into custody, or booking any person, or in the process of crowd control or riot control, physical force, or or if the handler allows the animal to use physical force that exceeds the degree of physical force permitted, yeah the officer must report that force to a supervisor, immediate supervisor, or or the handler's supervisor. So I can only imagine that somebody didn't report a use of force by a canine officer, and and that's why this came up. So that it basically says that those those reports have to include the date, time, place of occurrence, identity, description of the participants, and description of the events of the force used. And that that report has to be made within 10 days, the occurrence of such force. And then there's also, by the way, if if you're interested in in canine operations and and police dogs, I have a friend that wrote an excellent book several years ago. His name's Darren Maurer, and the book is uh it's called Canine Rocky. It's got great stories in there. It's well written. It was a it was an incredible police dog that he handled. Um and and if you're interested in that kind of thing, animal service animals and and police dogs and stuff, I encourage you to get that book and read it. It was it was enjoyable. I like I enjoyed it very much. So then the the statute also says any officer that doesn't report an excessive use of force uh commits a uh a crime, and if officers they it gives a duty to officers to intervene and stop other peace officers from from using, and it includes canine officers in this as well from using physical force that exceeds the degree of force permitted. And it says anybody who intervenes is also required to to file a report with his immediate supervisor, and that has to include the date time, everything else that the the report above had to include as well, and it has to be done within 10 days. So the the statute also prevents law enforcement agencies from disciplining or retaliating against peace officers that report excessive use of force, and um and it gives a c uh uh penalty for somebody who fails to intervene to prevent the unlawful use of force. The uh regardless of what is found during an internal affairs case, the district attorney um has to look at any use of force um that's that's been reported as excessive, and they have to repair a written a written report explaining their basis for the decision not to charge any peace officer with any criminal conduct, and they shall publicly disclose that report to the to the public, basically put it on their website. That's what they do in the state that I work in. I worked in. So it it gives some other like it says, unless that report would interfere with the ongoing criminal investigation or the the internal affairs investigation, which by the way, I'm gonna go, I'm gonna go over in my next episode. I'm gonna cover internal affairs investigations. And then the statute obviously says any peace officer who knowingly Makes a material a false statement, which the officer doesn't believe to be true, and any report made pursuant to this subsection commits false reporting to authorities. And it talks about the reports being used as evidence as well. So, and it says peace officers who use excessive force in their duties shall be subject to the criminal laws of the state to the same degree as any other citizen. And um excessive force basically is defined as physical force which exceeds the degree of physical force permitted pursuant to the section that I just that I just went over. The use of excessive force shall be presumed when a peace officer continues to apply physical force in excess of the force permitted by the above section to a person who has been rendered incapable of resisting arrest. So that's basically somebody who's who's in custody or they've they've given up, they've made it clear that they've given up the fight. And um basically this is just saying the DA is going to charge, gonna charge any officer that uses excessive excessive force. And then the statute requires all agencies to adopt policies or guidelines concerning the use of force by officers, and um and it requires a certain amount of training. So there is a there is a difference between actual excessive force and perceived excessive force. And and that's why it's important to uh to have experts in the training. A lot of force that's used uh is is considered excessive by citizens, whereas that's just the perception. It I mean it looks bad when cops are fighting with people and and and they're using a baton or they're throwing punches. And uh that can be perceived excessive force, or it might be excessive force. It depends on what started the whole fight and how bad the person was the person was fighting. So that's it for the the the use of force part. I did I saw I think it was a First Amendment auditor on TikTok that was mad because uh an officer he had put his camera in the officer's face, and the officer put his hand up and kind of pushed the camera away. He didn't forcefully push it, but just kind of it was just it kind of seemed like a like a flinch response to me. The officer's hand just went up and it ended up touching the camera. And um the the camera person was very angry that the the sergeant from that district came out and talked to the talked to the person and said, that's not an assault. Like he thought you were, he said he thought you were gonna punch him, so he put his hand up. And um and he was mad, so he wanted their cards, and he said he was gonna, the camera person said he was gonna go to the DA and have the officer charged with assault. I I don't think it didn't look to me like it, like it met the the requirements for an assault, but um I didn't follow up on that, so I don't know if the DA's office actually charged him or not. So answers to the questions are handcuffs necessary? Yes. If you're gonna go for a ride in a police car to be booked into jail, you're gonna be wearing handcuffs. I get annoyed at the people on YouTube and TikTok that complain about how uncomfortable handcuffs are. They're not built for comfort comfort, they're designed to restrict your movement, specifically the hands, because, well, hands can kill you. Uh and because of the historical cases wherein unrestrained people have overpowered police and killed or injured them, the use of handcuffs is considered reasonable when someone's arrested. You're not gonna find a court that that that says this person was being compliant, they were they were respectful, they were polite, there's no reason to put handcuffs on them. If somebody's gonna get arrested and taken to jail to be booked, they're gonna they're gonna put handcuffs on them. And that's that's not unreasonable. So why don't police shoot people in the leg or another non-deadly area of the body? So when the police are using deadly force, such as a firearm against a suspect, they've already decided that they're authorized to use the deadly force. So they've already decided that serious injury or death of the officer or someone else is imminent. And deadly force is just that, it causes death. So police are trained to shoot the largest area of the body, which is the chest, um, to shoot the heart or even the head. Police are trained to shoot people in the head as well. Um, because there have been instances where people have been shot and they continue to fight well after they they received a deadly injury. So, yeah, the goal when an officer is using deadly force is is to kill the person. And it's it's honestly hard enough to shoot somebody in the chest, um, which is probably the the biggest part of the human body. When the adrenaline kicks in and the critical stress is high, it's just not reasonable to expect an officer to shoot to injure somebody. So you say, oh, they should shoot them in the leg or shoot them in the knee to to make them stop fighting or whatever. That's just not uh it's it's not reasonable. Third question: why do police make some people lie on the ground before handcuffing them? Prone arrests and handcuffing are used for serious crimes in situations where the police need lots of control over the suspect or suspects. Placing someone on the ground face first uh before they've got handcuffs on with their legs and their arms spread creates a position of advantage for the police. And and if the police have reason to believe somebody might be armed or dangerous, they're likely gonna prone them out before handcuffing them. We had a situation, felony stops come to mind. Any felony stop, you have a felony that's been committed, and you're gonna pull a car over with the suspect, you're probably gonna have them pull over, turn the car off, throw the keys out the window, put their hands out the window and keep them up as they get out of the car, put their hands up in the air, keeping their hands in the air, you'll make them turn around fully so you can look at their waist, and then you'll have them, you'll have them prone out, and then they'll be covered while somebody walks up, goes up there and and puts the handcuffs on them. I pulled over a stolen car one night that was right outside of the prison that was in the in my area where I worked, and uh per the the car pulled over right away as soon as I turned my lights on. And as I waited for well, I waited for for a cover car, because you don't want to handle something like this on your own. And and as we ordered the person out of the car, uh he he got out and he had a prison uh correctional officer uniform on. So the cover officers yelled at him to get on the ground, get out. I'm like, hold on, like this is there's something going on here. So we didn't make the person get down. I just said, keep your hands up. And we went up and I said, Hey, this car has been reported stolen. What's going on? And I had the name, so he told me that his n his name, and it was the same person that owned the car. And and he said, What he had reported it stolen a week prior and or a day prior or something, and he was on his way to work and he saw the car, so he just got in it and drove it to work. He didn't bother calling the police and telling them that he had recovered it, so the the it was still listed as stolen, and um so you'll have odd situations that happen. Uh, we pulled over a truck one night, and I think it was a robbery, and the driver just absolutely refused to get on the ground. He was he was mad because he he had a nice big cowboy buckle and brand new Wrangler jeans and a nice silk shirt, and he didn't want to get on the ground and get all dirty. So, you know, you just have to kind of adjust to to situations like that, but he was refusing, and you know, you he wasn't he wasn't armed. There was nothing we could really do. Um, but we did go up there and and helped him to the ground so that we could handcuff him and and then figure out what was going on. That's it for this episode. I appreciate you. Uh thank you for listening. As always, comments, questions, or suggestions, leave in the fan mail link. And um again, I'll talk about internal affairs investigations in the next episode. So take care.