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101028590805POST00POSTCourse: Use of ForceTopic: Legal and Practical aspects of using forceTrainingProgramDetailsInstructor: Lesson Plan Originated by: Matt Bloodgood, Idaho POST Region IV Training CoordinatorDate Prepared: December 11, 2018Revision Date: February 10, 2020, Matt BloodgoodMajor Revisions: All Report Writing, Post Incident Procedures, and the Scenario Training related materials were removed from this course since they are being taught elsewhere in the Academy.Additions to this lesson plan include videos which will assist students understand major concepts and principles conveyed throughout this training course.Revision Date:Revision Date:InstructionalTimeThis course of instruction is slated for 16 training hours of lecture followed by planned reality based training scenarios which will vary in duration.GoalThis course is to inform and educate students on the legal and practical aspects of using force in law enforcement situations.PerformanceObjectivesAt the end of this block of instruction the student will be able to:Legal Aspects:1. Identify and apply when a law enforcement officer seizes a suspect under the Fourth Amendment2. Identify and apply the legal standards outlined in Graham v. Connor for the use of force during the seizure of an individual3. Identify and apply when deadly force is objectively reasonable4. Identify and apply the legal issues associated with the use of intermediate weapons, such as striking instruments and chemical sprays5. Identify and apply when a law enforcement officer violates a suspect's due process rights after seizing a suspect6. Identify and apply the elements of "qualified immunity" and when a law enforcement officer sued for excessive use of force is entitledPractical Aspects:1. Articulate the use of force in accordance with the constitutional standard.2. Identify factors that may cause unnecessary hesitation when an officer uses force3. Identify methods of overcoming unnecessary hesitation in use of force applications4. Identify the fundamentals of documenting a use of force incident5. Identify human performance factors that impact use of force responses6. Identify critical elements of post incident procedures7. Evaluate students’ performance in a use of force exercise.ReferencesThe vast majority of this lesson plan utilizes the Federal Law Enforcement Training Centers (FLETC) Use of Force lesson plans cited below in the reference list. The lesson plans were reformatted from the FLETC version to fit Idaho POST criteria. Information that was not relevant to the Idaho POST Basic Patrol Academy was deleted. Additional information, such as the relevant Idaho Codes, related to law enforcement use of force were added to this lesson plan.Artwohl, Alexis. Deadly Force Encounters: What Cops Need to Know to Mentally and Physically Prepare for and Survive a Gunfight Paladin Press, 1997Artwohl, Alexis, and Loren Christensen. Deadly Force Encounters. Colorado: Paladin Press, 1997Beyond Survival: Training officers to Win Willis, Brian. Control Concepts International. April 2007Chabris, Christopher, and Daniel Simons. The Invisible Gorilla: how our intuitions deceive us. New York: Broadway Paperbacks, 2009.Davis, Kevin. Use of Force Investigations A Manual for Law Enforcement. Bloomington: Responder Media, 2012De Becker, Gavin. The Gift of Fear. New York: Dell Publishing, 1997Department of Homeland Security, Federal Law Enforcement Training Center, Legal Division Student Text, 2015.Ericsson, A., Pool, R., Peak: Secrets from the new science of expertise, Houghton, Mifflin, Harcourt Publishing, 2016Federal Law Enforcement Training Center, Legal Division, Use of Force – Legal Aspects Lesson Plan Oct. 2015.Federal Law Enforcement Training Center, Operations Division, Use of Force (Practical aspects), Dec. 2017.Geiselaman, Edward R. “Memory Enhancing Techniques for Investigative Interviewing: The Cognitive Interview.” Force Science Certification Course. Force Science Institute, Alexandria, 12 Nov 2013.Glennon, Jim. “Pre attack indicators: Conscious recognition of telegraphed cues” Policeone. 12 March 2008Graham, Gordon. “Managing Risk in National Park Service Operations” Department of the Interior National Park Service Continued Professional Training. Federal Law EnforcementTraining Center, Glynco 13 March 2014.Grossman Dave, and Bruce K. Siddle, “Psychological Effects of Combat” Encyclopedia of Violence, Peace and Conflict, Academic Press, 2000.Grossman, Dave, “On Combat: The Psychology of Deadly Conflict in War and Peace,” Warrior Science Publications, 3rd Ed., October 2008.Hoag, John. “Interviewing Officers Who Have been involved In a Shooting: Policy and Legal Implications.” Force Science Certification Course.” Force Science Institute,Alexandria.Idaho Peace Officer Standards and Training, “Human Performance in Use of Force Instruction,” December, 2017Klein, Gary, Judith Orasanu, Roberta Calderwood, and Caroline Zsambok. Decision Making In Action: Models and Methods. New Jersey: Ablex Publishing Corporation, 1993Lawrence, Chris. “Fundamentals of Human Performance.” Force Science Certification Course. Force Science Institute, Alexandria, VA 12 Nov. 2013. Las Vegas, NV Dec. 2013Lawrence, Chris. “We Look with our Eyes but We See with or Brains.” Force Science Certification Course. Force Science Institute, Alexandria, VA 12 Nov. 2013, Las Vegas, NV, Dec. 2013Lewinski, Bill. “Why is The Suspect Shot in The Back?” Police Marksman Nov. /Dec. 2000 2028.Lewinski, Bill. “Evaluating Shootings” Force Science Certification Course. Force Science Institute. Alexandria, 11 Nov. 2013, Las Vegas, NV, Dec. 2013Lewinski, Bill “Time to Start Shooting? “Time to Stop Shoot? The Tempe Study” Police Marksman Sept./Oct. 2003.National Tactical Officers Association, “Tactical Response and Operations Standard for Law Enforcement Agencies,” April 2018Page, Jonathan, “Train the Brain”, Federal Law Enforcement Training Center, Glynco, 23 March 2016.Page, Johnathan. “The Brain Fills In The Gaps” Lawofficer. 5 March 2017Petrowski, Thomas. Fourth Amendment Issues Related to the Use of Force by Agents of the Government, Office of General Counsel, FBI Academy, Quantico, Va.Pinizzotto, Anthony J., Harry A. Kern, and Edward F. Davis. “One Shot Drops” FBI Law Enforcement Bulletin Oct. 2004 14 – 21.Ross, Darrell Civil Liability in Criminal Justice Sixth Edition. New York: Anderson Publishing, 2013Siddle, Bruce K. Sharpening The Warriors Edge: the psychology & science of training. Belleville: PPCT Research Publications, 1995Sztajnkryer, Matthew. “Understanding and Leveraging the Psychophysiology of Emotional Intensity.” Force Science Certification Course. Force Science Institute, Alexandria, 11 Nov. 2013, Las Vegas, NV, Dec. 2013The Tactical Edge, “The NTOA Tactical Response and Operations Standard- An Evolution,” pp. 10-11, Summer 2018United States. U.S. Department of Justice. Violent Encounters. Washington: Office of Justice Programs, Bureau of Justice Assistance, 2006.Willis, Brian. “Training at the Speed of Life, July 2005.” Policeone. 27 June 2005Willis, Brian. “Your Subconscious Mind” Police August. 2010.EquipmentClassroom with audio and visual presentation equipmentWhiteboard and markersHandoutsReality based training scenarios will have their own specified training equipment as needed per each scenarioInstructionalMethodsLecture format with PowerPoint presentation, imbedded videos, handouts for group discussion and reading, reality based training scenarios interspersed throughout the training academy period.InstructionPPT Slide 3PPT Slide 4PPT Slide 5PPT Slide 6-8PPT Slide 9PPT Slide 10PPT Slide 11PPT Slide 12PPT Slide 13PPT Slide 14INSTRUCTOR NOTEPPT Slide 15-16PLAY VIDEOPPT Slide 17PPT Slide 18PPT Slide 19PPT Slide 20PPT slide 21INSTRUCTOR NOTEPPT Slide 22PPT Slide 22PPT Slide 23PPT Slide 24PPT Slide 25PPT Slide 26PPT Slide 27PPT Slide 28PPT Slide 29PPT Slide 30PPT 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Slide 324PPT Slide 325PLAY VIDEOPPT Slide 326PPT Slide 327-328PPT Slide 329PPT Slide 330PPT Slide 331PPT Slide 332PPT Slide 333PPT Slide 334PPT Slide 335PPT Slide 336PPT Slide 337OUTLINE OF INSTRUCTIONINTRODUCTIONRAPPORT AND OPENING STATEMENTOne of the greatest trusts placed upon a law enforcement officer is the responsibility of balancing the constitutional interest of an individual against the interest of society. Uses of force applications are constitutionally permissible when reasonable requirements under the law are met.This balance of responsibility holds law enforcement officers accountable for discriminate and indiscriminate use of force based on the reasonableness of the officer’s decision. Every use of force application by an officer will be reviewed, critiqued and ultimately judged by the law enforcement agency, the courts, and society. Law Enforcement officers should not only be prepared to utilize force when objectively reasonable but also prepared to articulate the facts surrounding the incident in accordance with the standard. Regardless of the dynamics of the use of force situation, the standard of reasonableness mandates the officer’s response.The purpose of this information is to? provide the law enforcement officer with a better understanding of the Constitutional requirements for making use of forcedecisions? develop student proficiency at recognizing when force is objectively reasonable? develop the ability to recognize additional factors that affect the decision to use force? and develop ability to articulate facts using plain language rather than with conclusory statements.1. All civil claims that a law enforcement officer used excessive force – deadly or not - in the course of an arrest, investigatory stop, or other "seizure" of a free citizen are analyzed under the Fourth Amendment's objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 394 (1989).2. This course is intended to teach law enforcement officers when force is objectively reasonable. It is intended to dispel some of the myths about using force and to reduce the fear of lawsuits so that officers can perform their duties safely, effectively, and confidently.LESSON PLAN OVERVIEWWhen confronted with the facts of a potential or actual use of force situation, the student will recognize the legal standards for using force.Learning Objectives1. Identify and apply when a law enforcement officer seizes a suspect under the Fourth Amendment2. Identify and apply the legal standards outlined in Graham v. Connor for the use of force during the seizure of an individual3. Identify and apply when deadly force is objectively reasonable4. Identify and apply the legal issues associated with the use of intermediate weapons, such as striking instruments and chemical sprays5. Identify and apply when a law enforcement officer violates a suspect's due process rights after seizing a suspect6. Identify and apply the elements of "qualified immunity" and when a law enforcement officer sued for excessive use of force is entitledLearning Objective #1.: Identify and apply when a law enforcement officer seizes a suspect under the Fourth AmendmentA SEIZURE TRIGGERS THE FOURTH AMENDMENT.All claims that law enforcement officers have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed under the Fourth Amendment and its objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 394 (1989).TWO TESTS ARE USED TO DETERMINE WHEN A FREE CITIZEN IS SEIZED. In Brower v. Co. of Inyo, the Supreme Court held that a seizure occurs when there is a governmental termination of movement through a means intentionally applied." Brower v. Co. of Inyo, 489 U.S. 593, 597 (1989). The Brower test is used when an officer uses physical force for purposes of seizing someone. Shooting a suspect, striking him with a baton, or spraying him with OC are examples of physical force. Physical force is not always necessary. (See Brower, 489 U.S. at 600 (Stevens, J., concurring) (The intentional acquisition of physical control of something is no doubt a characteristic of the typical seizure, but I am not entirely sure that it is an essential element of every seizure or that this formulation is particularly helpful in deciding close cases.) A "show-of-force" may also terminate a suspect's movement. In Brendlin v. California, 551 U.S. 249 (2007), the officer activated the overhead lights on his cruiser signaling a car to stop. The specific issue before the Supreme Court was whether this show of force seized the "passenger." Answer: The reasonable person test. A reasonable person in the passenger's position would have understood the police officer to be exercising control to the point that no one in the car was free to depart without police permission. Id. at 257.The lower court had held that the passenger - Mr. Brendlin - was not seized because the officer was unaware that he was in the car. But the Fourth Amendment's focus is not on the officer's subjective beliefs. Id. at 260. Trying to determine what the officer knew, or who exactly the officer intended to stop, shifted the approach from an objective analysis to a subjective one. The Supreme Court has repeatedly rejected attempts to introduce that kind of subjectivity into Fourth Amendment analysis. Id. at 260 citing Whren v. United States, 517 U.S. 806, 813 (1996) (“Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.”); Michigan v. Chesternut, 486 U.S. 567, 576 n. 7 (“The subjective intent of the officers is relevant to an assessment of the Fourth Amendment implications of police conduct only to the extent that intent has been conveyed to the person confronted); United States v. Mendenhall, 446 U.S. 544, 554, n. 6 (1980) (disregarding a government agent’s subjective intent to detain Mendenhall); Rakas v. Illinois, 439 U.S. 128, 132-135 (1978) (rejecting the “target theory” of Fourth Amendment standing, which would have allowed “any criminal defendant at who a search was directed” to challenge the legality of the search).HOSTAGES AND BYSTANDERS SHOT BY ERRANT BULLETS ARE NOT SEIZED. If the Brower test is used when officers use physical force, it follows that someone hit by an officer's "errant bullet" cannot sue for a Fourth Amendment violation. Why? The "errant" bullet is not a means intentionally applied. See McGrath v. Tavares, 757 F.3d 20 (1st Cir. 2014) (in a car chase, none of the shots fired by one of the officers struck the suspect - - or otherwise caused his movement to be terminated; therefore, this officer did not seize him for Fourth Amendment purposes.) Childress v. City of Arapaho, 210 F.3d 1154 (10th Cir. 2000); Schaefer v. Goch, 153 F.3d 793 (7th Cir. 1998); Medeiros v. O'Connell, 150 F.3d 164 (2nd Cir. 1998); Rucker v. Harford Cnty., 946 F.2d 278 (4th Cir. 1991); and Landol- Rivera v. Cruz-Cosme, 906 F.2d 791 (1st Cir. 1990); but see Fisher v. City of Memphis, 234 F.3d 312, 318-319 (6th Cir. 2000)(Here, Becton's car was the intended target of Defendant's intentionally applied exertion of force. By shooting at the driver of the moving car, he intended to stop the car, effectively seizing everyone inside, including the Plaintiff).WHY NOT USE BRENDLIN'S REASONABLE PERSON TEST? Plaintiffs hit by the errant bullets of police have tried to argue that they were seized - and should be able to sue the responsible officers for Fourth Amendment violations- according Brendlin's reasonable person test. They make a good argument. While the bullet may not be meant for them, a reasonable person in their position may reasonably, albeit mistakenly, believe that the officer is trying to exercise control over them. (Brower's "means intentionally applied" test also seems like a subjective analysis.) Still, the lower courts have refused to allow plaintiffs harmed by physical force to proceed under Brendlin's reasonable person test because the law is not clearly established. See Cooper v. Rutherford, 2012 U.S. App. LEXIS 21129, *8-9 (11th Cir. 2013)(unpublished); see also Garner v. Board of Police Commissioners for Kansas City, 641 F.3d 947, 953 ((2011)(it was not clearly established at the time of the shooting that a police officer could effect a seizure without subjectively intending to do so.) We will explore what it means when the course says “…the law was not clearly established…” during training on Qualified Immunity.MISTAKES IN IDENTITY: An unintended person can still be the intended object of a Fourth Amendment seizure under either the Brower test or the reasonable person test. See Brower, 489 U.S. at 595 citing Hill v. California, 401 U.S. 797, 802-805 (1971); Brendlin, 551 U.S. 254. These are cases of mistaken identity, or situations where the officer seizes Mr. A, believing he is Mr. B. Mr. A is still seized within the meaning of the Fourth Amendment. The issue is whether the officer made an objectively reasonable mistake. See Catlin v. City of Wheaton, 574 F.3d 361 (7th Cir. 2009).WEAPONS CONFUSIONThere are several reported cases where officers have confused their pistols for electronic control devices (ECDs). The issue is whether the officer's mistake (confusing the weapon) was objectively reasonable. See Torres v. City of Madera, 524 F.3d 1053 (9th Cir. 2008) (distinguished by Johnson v. Bay Area Transit, 790 F.Supp. 2d 1034 (N.D. Cal 2011); Torres v. Madera, 648 F.3d 1119 (9th Cir. 2011); Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007); see also Atak v. Siem, 2005 U.S.Dist. LEXIS 37185(D.Minn.).OFFICER MISTOOK HIS GLOCK PISTOL FOR A TASER.INSTRUCTOR NOTE: Remind the students they have the following cases and related information in their Court Cases handout. In Henry v. Purnell, 501 F.2d 374, the officer mistook his Glock pistol for an electronic control device (Taser) and shot a fleeing misdemeanant in the elbow. The officer and the suspect stipulated/agreed that the officer intend to use an ECD, not the handgun. Id. at 379.PLAINTIFF/SUSPECT SEIZED. Despite the officer's "honest" belief that he was using an ECD, the Fourth Circuit still held that the suspect was seized. The officer's intent was to stop the suspect from fleeing by means of firing "a weapon" and he was in fact stopped by the very instrumentality (i.e., the Glock) that the officer put in motion to achieve that result. The Court recognized that the officer did not intend to use the Glock, but was mindful of the Supreme Court's admonition that it should not draw too fine a line in determining whether the means that terminates a person's freedom of movement is the very means that an officer intended." Henry 501 F.2d at 381 citing Brower, 489 U.S. at 598-599.NO PER SE VIOLATIONS. The fact that the officer made a mistake and confused his Glock for the Taser is not an "automatic" Fourth Amendment violation. The Fourth Circuit remanded the case back to the district court to determine whether the officer made a reasonable mistake. Henry, 501 F.3d at 384. On remand the district court held that the mistake was reasonable and would have granted the officer qualified immunity. Henry v. Purnell, 559 F. Supp. 2d 648 (D. Md. 2008). The Fourth Circuit reversed. See Henry v. Purnell, 652 F.3d 524, 537 (4th Cir. 2011). The Fourth Circuit held that there was a triable issue about whether the mistake was reasonable. First, and most basically, the officer knew he carried his Taser in the holster on his right thigh, which was about a foot lower that the holster on his hip that held his Glock. Second, the weight of the pistol was about 38 ounces, nearly twice the weight of his Taser. Third, Purnell knew the Taser had a thumb safety. Id. at 532-533.OFFICER SHOT A SUSPECT IN THE BACK SEAT OF A PATROL CAR. In Torres v. City of Madera, 524 F.3d 1053 the suspect was handcuffed in the back of a patrol car. The officer believed he was going to kick through the glass window and possibly injure himself. The officer opened the door, reached down with her right hand to her side, unsnapped her holster, removed the Glock, aimed the weapon's laser at Everado's center mass, put her left hand under the gun, and pulled the trigger, all without looking at the weapon in her hand. The parties agreed that she intended to reach for her Taser, which she also kept in a thigh holster immediately below her holstered Glock. The suspect died.THE SUSPECT WAS SEIZED. The Ninth Circuit held that the suspect was seized within the meaning of the Fourth Amendment at the time of the shooting. Torres, 524 F.3d at 1056. The officer's conduct was therefore governed by Fourth Amendment's reasonableness analysis. The Ninth Circuit remanded the case back to the district court to consider whether the officer's mistake was reasonable. REASONABLE MISTAKE? On remand, the district court held that the officer made an objectively reasonable mistake. Torres v. City of Madera, 655 F. Supp. 2d 1109 (E.D. Cal., 2009). But the Ninth Circuit reversed. Torres v. Madera, 648 F.3d 1119 (9th Cir. 2011). A reasonable jury might find that the mistake was not reasonable. To guide the determination of about whether the officer should have known she was holding the wrong weapon, the Ninth Circuit identified five factors to consider: (1) the nature of the training the officer received to prevent accidents like this from happening; (2) whether the officer acted in accordance with that training; (3) whether following that training would have alerted the officer that she was holding a handgun; (4) whether the defendant's conduct heightened the officer's sense of danger; and (5) whether the defendant's conduct caused the officer to act with undue haste and inconsistency with that training. Id. at 1125.VIDEO: This is the video of a Tulsa County Sheriff’s Office Reserve Deputy who unintentionally shot a man who was being arrested during an illegal gun buy. The suspect in this case was attempting to sell a stolen gun to an undercover deputy. The suspect fled on foot and was captured during the foot pursuit.During the arrest, the 72 year old Reserve Deputy ran up intending to deploy a Taser. Instead, he drew a .357 caliber handgun and shot the suspect one time, in the back. The suspect later died of the wound.In the investigation it was determined that the Reserve Deputy had been carrying the Taser on his support side of his body. He was carrying the handgun in a shoulder holster. His primary firearms training had been from a hip mounted holster on his strong side hip. This is evidence of a slip and capture error, where an individual intended to do one thing, but did something else. This can occur when the intended action is similar to the unintended action but under stress, the individual unintentionally makes an error. For example, you’ve just got a new car. Soon after getting the new car, you’re in hurry and you get into the new car and start poking the key in the same location as the ignition in your old car was located.In addition to the problems with him shooting the wrong weapon, there was possible evidence of fraudulent training records. It was alleged that the training Supervisor was ordered to falsify training records. As a result of the investigation, the Reserve Deputy was charged with 2nd Degree Manslaughter and was sentenced to a four year prison sentence. The Sheriff resigned his position when he was indicted. He was sentenced to one year probation. During the subsequent civil suit, a $6 million settlement was made. ONE WHO GOT AWAY To be "seized" and entitled to Fourth Amendment protections, the courts generally hold that the plaintiff must submit to governmental control. See Brower, 489 U.S. 595-596 (a seizure only occurs if the government's action restrained the movement of the suspect); Brendlin, 551 U.S. at 254 (a police officer may make a seizure by a show of authority, and without the use of physical force, but there is no seizure without actual submission); California v. Hodari, 499 U.S. 621, 628-29 (1991)(no seizure occurred during the course of a foot chase because the government's "show of authority" did not produce the stop); Brooks v. Gaenzle, 614 F.3d 1213, 1223 (10th. Cir. 2010)(no seizure can occur unless there is physical touch or a show of authority; but such physical touch (or force) must terminate the suspect's movement, and, alternatively, any show of authority (without touch) must cause submission); but see United States v. Griffin, 2011 U.S. App. LEXIS 15009 (7th Cir. 2011)(while an officer's application of physical force "always" constitutes a seizure, a show of force alone is insufficient.) citing Hodari, 499 U.S. at 626.Learning Objective #2.: Identify and apply the legal standards outlined in Graham v. Connor for the use of force during the seizure of an individualGRAHAM V. CONNOR - THE LEADING CASE. The Supreme Court stated in Graham v. Connor that all claims that law enforcement officers have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amendment and its [objective] reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395 (1989).THE FACTS: INSTRUCTOR NOTE: The students have this case summary as part of the Court Cases handout. You will still need to review the facts in this case to them.Mr. Graham was a diabetic. After feeling the onset of an insulin reaction, he called his friend Berry and asked for a ride to a convenience store. Graham hoped to buy some orange juice. He thought that the sugar in the juice would counteract the reaction. Graham and Berry arrived at the store. Graham got out of the car and “hastily” went inside. Unfortunately, the check-out line was too long for Graham so he “hastily” returned to the car, got in, and told Berry to drive to another friend’s house. Maybe this friend would have some juice.Waiting outside the store was Officer Connor. Connor had watched Graham hastily enter and leave the store and suspected something was amiss. Connor followed the two men for a block or so before activating his overhead lights. Berry pulled over.Berry tried to explain that his friend was just having a “sugar reaction” but Connor was not convinced. Connor told the two men to wait at their car while another officer returned to the store to determine what happened. Things got worse from that point.Graham got out of the car. He ran around the car two times, sat down on the curb, and momentarily passed out. Back-up officers arrived. According to Mr. Graham, he was violently picked up, pushed against a police car, handcuffed, and placed into the backseat of one of the cruisers.All this time, Berry (and Mr. Graham after he regained consciousness) tried to explain to the officers that they had done nothing wrong and that Graham just need the orange juice. One officer commented that he had seen a lot of people with diabetes before and that none had acted like Graham. One officer opined, "Ain't nothing wrong with the M.F. (Graham) but drunk" and he said, "…lock the S.B. up."Connor finally received the report from the officer who returned to the store. The officer confirmed what Berry and Graham had been saying – nothing was amiss. But in the meantime, Mr. Graham had suffered cuts on his wrist, a bruised forehead, a broken bone in his foot, an injured shoulder, and persistent ringing in his ears.Graham sued the police officers. The Supreme Court stated that the officers should be judged based on the Fourth Amendment’s objective reasonableness test.THE OBJECTIVE REASONABLENESS TESTThe Court stated that, “The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. The objective test requires the court to envision a reasonable officer and ask: Based on the totality of the facts and circumstances, could such an officer believe that the force was reasonable? Since the objective test judges the officer through the lens of a reasonable officer, the subjective beliefs of the actual officer – whether they are good or bad – are not relevant. Id. at 397. Officer Connor may have honestly believed that Graham was a shoplifter, but his subjective beliefs are not relevant. The objective test asks what a reasonable officer could believe - - based on the facts. THE NO "20/20" HINDSIGHT RULEOfficers are judged based on the facts that are reasonably known to them at the time they used the force. Id. at 396 (The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.) What officers learn later (after-the-fact) is not relevant under the objective test. And what was not available to the officers when Graham was initially stopped, handcuffed, and put in the cruiser was the report from the officer who returned to the store. Nothing was amiss. See also Betts v. Shearman, 751 F.3d 78 (2d Cir. 2014) (officers had probable cause to arrest based on the facts reasonably known to them at the time.)NO PERFECT ANSWERS The test for reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. Id. at 396. Allowance must be made for the fact that “…police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain and rapidly evolving – about the amount of force that is necessary in a particular situation.” Id. at 397.What would have been the perfect answer requires 20/20 hindsight.RANGE OF REASONABLENESS Obviously, there may be more than one way to effect a seizure in a tense, uncertain, and rapidly evolving event - and while hindsight may prove one option better than another - what matters is whether the one chosen "at the time" fell within the range of reasonableness.THE GRAHAM FACTORS The Court stated that determining whether the force used is reasonable requires a careful balancing of the nature of the intrusion on the suspect’s liberty against the countervailing governmental interest at stake. Id. at 396. In other words, what did the officer do to the suspect (or what was the nature of the intrusion on the suspect’s liberty) and why did the officer do it (or what was the governmental interest at stake for doing it.)? The Graham factors are governmental interests for using force. These factors are like a checklist of possible justifications for using force. They are not a complete list and all of the factors do not apply in every case. The Graham factors are: WHAT WAS THE SEVERITY OF THE CRIME AT ISSUE? The “severity of the crime” generally refers to the reason for seizing someone in the first place. Officer Connor may have been acting under a reasonable suspicion that Graham stole something from the store. Arrests and investigative detentions are traditional, governmental reasons for seizing people. Generally, the more serious the crime at issue, the more intrusive the force may be.GRAHAM FACTORS ARE NOT EXHAUSTIVEThe Graham factors are not exhaustive. There may also be a good reason for seizing someone not suspected of any wrongdoing. For example, reasonable force may be used to control the movements of innocent passengers during a traffic stop. See Pennsylvania v. Mimms, 434 U.S. 106 (1977) and Maryland v. Wilson, 519 U.S. 408 (1997). While executing a search warrant, reasonable force may be used to detain people on the premises. See Michigan v.Summers, 452 U.S. 693 (1981).ACTIVE RESISTANCE OR FLIGHT Resisting an arrest or other lawful seizure affects several governmental interests. It may prevent the officer from effecting an arrest, investigating a crime, controlling a traffic stop, or executing a search warrant. Attempting to evade a lawful seizure by flight frustrates some of the same governmental interests as resistance. The Graham factors cannot be considered in a vacuum, either. Active resistance may pose a threat to the officer. Flight (by means of a speeding vehicle) may also pose a threat to the officer or other motorists. See Scott v. Harris, 550 U.S. 372 (2004); Plumhoff v. Rickard, 134 S.Ct. 2012 (2014); McGrath v. Tavares, 757 F.3d 20 (1st Cir. 2014); Thompson v. Mercer, 762 F.3d 433 (5th Cir. 2014); Cass v. City of Dayton, 770 F.3d 368 (6th Cir. 2014); but see also Luna v. Mullenix, 765 F.3d 531 (5th Cir. 2014)(driver in a high-speed pursuit may not have posed a significant threat since he was speeding in a rural area and there were no innocent pedestrians).IMMEDIATE THREAT TO THE SAFETY OF THE OFFICER OR OTHERSWhether the suspect is an immediate threat to the safety of the officer or others is generally considered the most important governmental interest for using force. The greater the threat, the greater the force that is reasonable. OTHER FACTORS The Graham factors are not a complete list. But while the lower courts have listed others, most are a subset of what is generally considered the most important – the immediate threat to the officer or others.NUMBER OF SUSPECTS VS. NUMBER OF OFFICERSThe number of suspects verses the number of officers may affect the degree of threat. Initially, it was Officer Connor against two suspects. See also Beaver v. City of Federal Way, 507 F.Supp. 2d 1137 (W.D. Wash. 2007) (The degree of threat diminished when a back-up officer arrived on the scene).SIZE, AGE, AND CONDITION OF THE SUSPECT VS. THE OFFICER Feliciano v. City of Miami Beach, 2012 U.S. Dist. LEXIS 343061 (S.D.Fla. 2012)(citing the city's SOP for using force and setting forth various factors to consider, to include the size, age, and weight of the suspect); Hunt v. Massi, 773 F.3d 361 (1st Cir. 2014)(it was not unreasonable to handcuff a suspect's hands behind his back despite his pleas that he had just undergone stomach surgery after the officers checked his stomach and the suspect had a long criminal history.PREVIOUS VIOLENT HISTORY (KNOWN TO THE OFFICER) Hunt v. Massi, 773 F.3d 361 (1st Cir. 2014)(It was not unreasonable to handcuff a suspect's hands behind his back despite his complaints that he had just undergone stomach surgery and should be handcuffed in front. The officers found no scars/injuries consistent with surgery after lifting his shirt and the suspect had a long criminal history) PSYCHIATRIC HISTORY (KNOWN TO THE OFFICER) A suspect's known mental illness may be a warning to call a mental health professional, or CIT trained officers, to help de-escalate the situation. Even when an emotionally disturbed individual is "acting out" and inviting officers to use deadly force to subdue him, the Ninth Circuit states that the governmental interest in using such force is diminished by the fact that the officers are confronted, not with a person who has committed a serious crime against others, but with a mentally ill individual. See Delorle v. Rutherford, 272 F.3d 1272 (2001). But see also San Francisco v. Sheehan, 135 S.Ct. 1765 (2015). The Court reversed the Ninth Circuit's decision that the law clearly established that the entry into a residence could still be unreasonable under the Fourth Amendment by reason of the anticipated resistance of an armed and violent mentally ill suspect within. See also "Circuit Split in Controlling Suicidal People" by Tim Miller attached to this lesson plan.USE OF ALCOHOL OR DRUGS (KNOWN TO THE OFFICER) See Beaver v. City of Federal Way, 507 F.Supp. 2d 1137, 1145 (in finding that the use of a dart-mode electronic control device was reasonable, the court considered that the suspect was under the influence of narcotics as a factor to consider.)PRESENCE OF BY-STANDERS See Scott v. Harris, 550 U.S. 372, 384 (2007) (the Court weighed the possibility that the high-speed chase of the suspect would injure members of the public); Plumhoff v. Richard, 188 L.Ed. 2d 1056 (2014); but see also Luna v. Mullenix, 765 F.3d 531 (5th Cir. 2014) (there was a dispute as to whether the driver in a high- speed pursuit posed a significant threat to others because when the officer shot into the car killing the suspect he was in a rural area and there were no innocent victims in the area).VIDEO: This video is of a shooting in Las Vegas where an officer was being shot at by two homicide suspects. The officer elected to shoot through his windshield at the suspects. Discuss this choice of force option. What are some of the issues to consider here?1. What training has he had in shooting from a moving vehicle?2. Are the policies which prohibit him from shooting at, or from, a moving vehicle?3. What training has he had in shooting from a vehicle?4. Did the shots fired from inside the car affect his hearing?5. What backstop issues did he have? 6. What about civilians in the area?Discuss with the students how they will receive training which may answer these questions. Also discuss with them that as they learn about use of force, force options, and decision making, that they will find there may be more than one solution to a problem, but it might not always be the best one.TIME TO CONSIDER OTHER FORCE OPTIONSTime is also a factor, as is the need for the force in light of the Supreme Court’s statement in Graham that “The calculus for reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - - in situations that are tense, uncertain, and rapidly evolving - - about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 397. A robbery suspect who reaches into his waistband creates some split-second decision making for the officer; more deference should be given to the officer’s decision.VIDEO: In this video Las Vegas officers are pursuing a shooting suspect in a stolen car. The car stops and the two occupants attempt to flee. As the male suspect runs up the sidewalk, he pulls a handgun and fires at least five shots in the incident (one in the air which can be seen on video, and four more toward the officers off screen). The pursuing officers shoot the suspect 19 times (26 shots total). The female suspect sustains an injury to her right arm, she was hit by one of the officers who was shooting. One of the officers was in his fifth week of field training.Discuss with the students that as soon as the shooting was over, the officers started to render aid to the two suspects. Other points to discuss: The second officer covering the first officer with his muzzle. Discuss muzzle awareness. Discuss putting rubber gloves on before treating wounds to minimize blood borne pathogen issues. not every encounter requires split-second decision making. The more time the officer has, the more options the officer can consider. In a case where protestors are simply refusing to get up and leave, spraying them with oleoresin capsicum (OC) spray is probably not reasonable. There is time to consider less intrusive options. See Headwaters Forest Defense v. The County of Humboldt, 276 F.3d 1125, 1130 (9th Cir. 2002). Learning Objective #3.: Identify and apply when deadly force is objectively reasonableDEADLY FORCEShooting a suspect is often called “deadly force.” This is the highest level of intrusion on someone’s liberty, so it must be justified by a very high governmental interest.FORCE HIGHLY LIKELY TO HAVE DEADLY EFFECTS - TENNESSEE V. GARNER INSTRUCTOR NOTE: This facts of this case are on the student’s Court Cases handout. Review the facts in this case with them.The Supreme Court’s decision in Tennessee v. Garner started with a complaint about a prowler inside a house. Tennessee v. Garner, 471 U.S. 1 (1985). Two police officers responded and one of them saw Garner run out of the house. The officer saw no sign that Garner was carrying a weapon and was “reasonably sure” he was not armed. The officer yelled “police, halt!” but Garner kept running. When Garner began to climb-over a fence, the officer had two options. He could let Garner escape, or shoot him. Relying on a Tennessee statute that allowed police officers to use all necessary force to effect the arrest of any fleeing felon, the officer did what he deemed was necessary. He shot Garner in the back of the head. Garner, 471 U.S. at 3-5. The Court held that the Tennessee statute was unconstitutional in so far as it authorized the use of deadly force to stop any fleeing felon. Id. at 11. Garner actually came before Graham; however, applying the facts to the Graham factors illustrates why the force was unreasonable. The “seriousness of the crime” was burglary and Garner “attempted to evade arrest by flight.” That was all. The governmental interest was not strong enough to justify what the officer did. “It is not better that all felony suspects die than that they escape” the Court stated. “We conclude that such force may not be used unless it is necessary to prevent the escape and the officer had probable cause to believe that the suspect posed a significant threat of death or serious physical injury to the officer or others.” Id. at 11 and 12.OTHER SHOOTING CASESIn light of Garner, shooting a suspect with a firearm is not unconstitutional when a reasonable officer could believe that the suspect poses a significant threat of death or serious bodily harm. Some of the federal circuits use a probable cause standard (…i.e., a reasonable officer could believe he probably posed a significant threat). Probable cause is a common-sense, all things considered standard for assessing probabilities in a particular factual context. And what amounts to a significant threat? The suspect may pose an imminent threat, like a terrorist who evades arrest and remains at large. The threat may also be immediate, like a motorist who pulls a gun on a police officer during a traffic stop. A warning adds to the reasonableness of a force option, but is not always feasible.DETERMINATIVE ISSUE The determinative issue in most shootings is whether the suspect posed an immediate threat of death or serious bodily harm. And police officers do not have to wait for the suspect to point a gun at them, either. They can respond to the threat of violence rather than violence itself. VIDEO: There are two videos here. One from Arizona and the other from Oklahoma. Review the videos with the students, relay the facts and talk about the appropriate nature of the force used in light of Graham v Connor and Tennessee v Garner.Marana, AZ Incident- , OK Incident Ayala v. Wolfe, 546 Fed. Appx. 197 (4th Cir. 2013). Late one night, Officer Wolfe responded to a report that three men had robbed a restaurant and then fled on foot. Wolfe saw Ayala just a few blocks away. See Ayala at 200 n.3 (The Court did not consider whether Officer Wolfe had reasonable suspicion to stop Ayala because Ayala failed to properly raise this issue at trial.) Wolfe stopped his cruiser, ordered Ayala to put his hands on the hood, and began to frisk Ayala. Wolfe felt a gun in Ayala’s waistband. Upon feeling the gun, Wolfe backed away, moved behind the cruiser, and drew a pistol. Without a word of explanation, Ayala took his hand off the hood (where he had been ordered to keep it) and removed the gun from his waistband. Wolfe shot Ayala several times. Wolfe’s first bullet knocked Ayala’s gun out of his hand. But the muzzle flash and darkness prevented Officer Wolfe from seeing Ayala’s gun fall. Wolfe fired until Ayala hit the ground. Ayala claimed that Officer Wolfe used excessive force by shooting him initially, and by continuing to shoot after he dropped the gun. Id. at 199. The United States Court of Appeals for the Fourth Circuit viewed the facts through the lens of a reasonable officer.THREAT OF VIOLENCE Wolfe ordered a robbery suspect to put his hands on the car and felt a gun during the frisk. Another crucial fact was that Ayala took his hands off the car and removed the gun from his waistband, without any explanation. “But I never pointed the gun at Wolfe,” Ayala claimed. Still, a reasonable officer would have cause to fear serious physical harm. Ayala 546 Fed. Appx. at 200 - 201.NO 20/20 HINDSIGHT Ayala’s argued that the threat was gone after he dropped the gun. He made a valid point: Force justified at the beginning of an encounter is not justified later if there is no longer a significant threat. Ayala at 201 citing Waterman v. Batton, 393 F.3d 471 (4th Cir. 2005); see also Ellis v. Wynalda, 999 F.2d 243 (7th Cir. 1993). But officers are judged based on the facts reasonably known to them at the time. The darkness and the muzzle flash prevented Wolfe from seeing Ayala’s gun fall. A reasonable officer could believe that Ayala still held the gun, and that continuing to shoot was reasonable. Ayala 546 Fed. Appx. at 201; see also Aipperspach v. McInerney, 766 F.3d 803 (8th Cir. 2014) While subsequent investigation revealed that the suspect was holding a Daisy air pistol, the officers reasonably believed he posed a significant threat when they shot him; Pollard v. City of Columbus, 780 F.3d 395 (6th Cir. 2015) Subsequent investigation revealed that suspect did not have a gun.VIDEO: The first video is from a deputy’s body cam showing what appears to be a suspect continuing to resist officers. The second video is from the building security camera which shows the suspect as he stopped fleeing, put his hands up, and laid down on the ground, offering no resistance and the deputies punching and kicking him with no apparent active resistance on the part of the suspect. All five deputies were fired and brought up for prosecution. Two of the deputies received 14 month Federal prison sentences. Two others received sentences of one year plus one day in a halfway house. The fifth deputy went to trial and was found not guilty. All were fired.The suspect in this case received a $120,000 settlement, $100,000 from the Sheriff and $5,000 each from the deputies. THE FACTS, CHANGE THE ANSWER. “No citizen can fairly expect to draw a gun on police without risking tragic consequences,” the Fourth Circuit stated. The Court would also caution officers not to rely too heavily on generalized statements. Facts make force reasonable. They did not in Cooper v. Sheehan, 735 F.3d 153 (4th Cir. 2013). After receiving a 911 call, officers drove to Mr. Cooper’s house. It was late at night. According to Mr. Cooper, the officers came on his property and walked to his house without announcing themselves. From inside, Cooper called, “Who’s out there?” When no one answered, Cooper walked out on the porch with his shotgun. Cooper said that he held the butt of the shotgun with his right hand and that the muzzle was pointed at the ground. Without warning, Cooper claimed that the officers immediately fired and that he was hit multiple times. Cooper 735 F.3d at 155-156. Those facts failed to support the proposition that a reasonable officer would have cause to feel threatened by Cooper’s actions. Id. at 159. Simply walking out on one’s porch with a firearm to investigate is nothing more than any free citizen might do.CHANGE THE FACTS Just holding a firearm is not enough to justify deadly, or any force. But what if the officers had identified themselves to Cooper as police and their commands to drop the gun went unheeded? In Montoute v. Carr, 114 F.3d 181 (11th Cir. 1997), a man fired an illegal sawed-off shotgun in a crowd of people during a near-riot situation. Still holding the gun, he ran past an officer who repeatedly ordered him to drop it. While he never turned to face the officer again - or pointed the gun at anyone - the Eleventh Circuit recognized that “there was nothing to prevent him from doing either, or both, in a split-second.” At least where orders to drop the weapon have gone unheeded, an officer is not required to wait until an armed and dangerous suspect has drawn a bead on the officer before shooting him first. Id. at 185. A suspect may also turn very violent, very quickly. When he does, more deference is made for split-second decisions. Consider the Eighth Circuit’s decision in Morgan v. Cook, 686 F.3d 494 (8th Cir. 2012). Two officers were dispatched separately to the Morgan residence about a domestic dispute. Officer Cook arrived first, got out of his car, and walked towards the house. Cook saw Mr. Morgan on the porch. Morgan walked towards some chairs, stumbled over one, and fell into a recliner. Based on past dealings with Morgan and the way he was walking, Cook believed Morgan was intoxicated.Officer Cook stopped about six to twelve feet from the front porch. Then Morgan’s girlfriend came out. “He’s got a knife,” she said. Cook looked and saw Morgan try to conceal a kitchen-type knife in his right hand. Cook drew his pistol, told the girlfriend to go back inside, and twice ordered Morgan to drop the knife. Instead, Morgan got out of the recliner. Now standing, and with the knife still in his hand, Morgan raised his right leg - as if to take a step in Cook’s direction. Officer Cook fired one shot, killing Morgan. The Court found that a reasonable officer could believe that Morgan posed an immediate threat of serious bodily harm to the officer. Id. at 497.Morgan’s Estate tried to argue that the step forward did not create an immediate threat. But there was more than just that. Cook had ordered Morgan to drop the knife; the knife was in Morgan’s hand; Morgan was less than twelve feet from the officer; and he appeared to be coming forward.OBJECTIVELY REASONABLE, NOT MINIMAL FORCE Morgan’s Estate also argued that Cook had non-lethal alternatives available. Morgan 686 F.3d at 497. It argued that Officer Cook should have warned Morgan that he would fire; that Cook should have used an intermediate weapon instead of a firearm; and, that he should have retreated and waited for backup. Id. at 497. But the law only requires that the seizure be objectively reasonable, not that the officer pursue the most prudent course of conduct as judged by 20/20 hindsight. Id. You should have… and I would have… often mark the beginning of subjective opinions that are based on just that – hindsight. And while a warning should be given if feasible, Morgan got one: A gun pointed at him and a command to drop the knife. Officer Cook did not have time to be more specific.VIDEO- This is a video showing an officer contacting a subject who is armed with a knife. It shows how quickly a suspect can become aggressive toward officers. Notice that as soon as the officer indicated he was going to transition to his Taser, how fast the suspect goes from walking to running at the officer.This case occurred in Fort Collins, CO. The suspect, Jeremy Holmes was armed with a knife. He was ordered to drop the knife at least 40 times. During the recording, he talks about wanting to die and telling the police he wants them to kill him. Holmes was walking toward the Colorado State University campus intending to kill his brother and sister-in-law. He was seen walking toward the campus by the responding officer. Holmes is armed with a bayonet style knife.The CSU Officer backed up over 100 feet in this incident.During the incident, a Ft. Collins PD Officer was en route to a burglary related pursuit call, when she saw the officer with the suspect. She turned around to assist. When she arrived the CSU PD Officer advised he was going to use the Taser and then Holmes charged him. Holmes was shot six times, four by the CSU PD officer and twice by the FCPD Officer. Holmes was killed.In Jan. 2020, Holmes mother attempted to use Colorado’s new “Red Flag” laws to have the CSU PD officer disarmed and terminated from his job. She was arrested for perjury and an attempt to influence a public servant. V. HARRIS - HOW TO INTERPRET GRAHAM AND GARNER For several years, the lower courts believed that the Garner decision set rigid, preconditions as to when deadly force was authorized. The fact that Graham’s objective reasonableness test is the standard for judging all force was not made clear until the Supreme Court’s decision in Scott v. Harris, 550 U.S. 372 (2007).VIDEO: This is a shortened segment of the in-car video from Officer Scott’s car. It shows some of the highlights of the driving done by the suspect in this case. It also shows Scott’s pushing the car off the road and the subsequent collision.MR. HARRIS' ARGUMENT Mr. Harris was speeding one night when an officer signaled for him to stop. Harris fled and a high-speed car chase ensued. Enter Officer Scott. Scott effectively pushed Harris’ car off the road with the push-bumper on his cruiser. At the speeds both cars were traveling (almost a 100 miles per hour) Harris claimed that the push amounted to deadly force and that deadly force was unreasonable to stop someone fleeing from a mere traffic offense. Harris referenced a statement in Tennessee v. Garner about when deadly force was reasonable to stop a suspect's flight. In case of flight, the Garner Court had stated:1)“If…there is probable cause to believe that [the suspect] has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” See Scott, 550 U.S. 372, 382 at n.9.2) The Garner Court was probably envisioning someone like Timothy McVeigh who would pose an imminent threat to society if allowed to escape arrest and remain at large. Harris argued that he did not pose such a threat – merely by being at large - and therefore, deadly force was unconstitutional to stop him. (Recall that Timothy McVeigh killed 168 people on April 19, 1995 when he detonated a bomb in front of the Alfred P. Murrah Building in Oklahoma City.)NO RIGID PRECONDITIONS FOR USING FORCEThe Supreme Court disagreed with Harris' argument. “Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute “deadly force”’ the Court stated. The heart of the Graham decision is to weigh the nature of the intrusion on the suspect’s liberty (what the officer did) against the countervailing governmental interest at stake (why the officer did it.) Scott at 382 - 383.HEART OF THE OBJECTIVE REASONABLENESS STANDARDNATURE OF THE INTRUSION So, what did Officer Scott do? Scott pushed Harris off the road with his cruiser while Harris was traveling over 80 miles per hour. True: Scott’s actions posed a high likelihood of serious injury or even death to Harris. Scott at 383. In fact, Harris was nearly ERNMENTAL INTEREST But why did Officer Scott push Harris off the road? Harris fled when an officer activated his cruiser’s overhead lights. Officer Scott watched Harris racing down narrow, two-lane roads in the dead of the night, and at speeds in excess of 85 miles per hour. Harris swerved around more than a dozen other cars, crossed the double yellow line, and forced other cars off the road to avoid being hit. He ran multiple red lights and traveled for considerable periods of time in the occasional center left-turn-lane. Harris did all that while being chased by numerous police cars. He even rammed one of the cruisers chasing him. Only after observing those facts did Officer Scott push Harris’ car off the road.APPLY THE FACTS TO THE GRAHAM FACTORSThe Court then applied the facts to the Graham factors. Granted, the underlying reason for stopping Harris was a minor traffic violation. But Harris fled. And his flight (by means of a speeding vehicle) posed the significant threat of serious physical harm to others, and created the strong governmental interest that justified what Scott did as within the range of reasonableness. Scott at 386.WHY NOT STOP THE PURSUIT?There is not a Fourth Amendment prohibition against vehicle pursuits of fleeing misdemeanants. Harris argued that the public would have been protected, and the tragedy avoided, if the police simply ceased their pursuit. But the Court stated, “…we are loath to lay down a [constitutional] rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives at danger.” Scott at 385. Still, state law and agency policy may place heightened restrictions on pursuits due to the extreme risks they pose to the officers and the public. See Day v. State of Utah, 980 P.2d 1171 (Utah 1999) THE RELATIONSHIP BETWEEN GRAHAM AND GARNER1)GRAHAM ESTABLISHES THE TEST. Graham establishes the test for judging police officers accused of using excessive force. The test is objective reasonableness. Garner provides examples as to when deadly force – particularly shooting someone - is objectively reasonable. One is a situation where a suspect poses would pose an immediate threat of death or serious physical injury. The other would be that the suspects poses an imminent threat to society if allowed to evade arrest by flight.2)NO RIGID PRECONDITIONS (FACTS) THAT MUST EXIST. There are no rigid preconditions that must exist before using force. The court must wade through the facts in each case. When the facts come together that a reasonable officer could believe that the suspect poses a significant threat, deadly force falls within the range of reasonableness. Taking this a step further, there is not a precise definition of what deadly force is. Shooting Garner in the head was certainly deadly. Pushing Victor Harris off the road - - maybe not so much, but it was still likely to cause serious injuries. Each case requires the reasonable officer to weigh the nature of the intrusion (what the officer did) against the countervailing governmental interest at stake (why he did it). That leads to intermediate weapons. The good news is that the test is the same.State LawAside from Federal law, and related case law, there is Idaho State laws concerning arrests and the potential for use of force. We are going to list the relevant state statute and touch on the specific aspect of the statute. It is important that you use the listed codes and review the actual law for yourself. It is your responsibility to know what the law actually states in each of these statutes. You will be tested on them.19-601 Arrest Defined?“…taking a person into custody in a case and in the manner authorized by law.”19-602 Arrest, How Made?“…actual restraint of the person of the defendant…”?“The defendant must not be subjected to any more restraint than is necessary for his arrest and detention.”19-608 Information to Person Arrested?“The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it…”?ExceptionsEngaged in the commission, or attempt to commit an offense.Is pursued immediately afterwards.Or after an escape.19-610 What Force May Be Used?With a warrant, or probable cause?After information of the intention to make the arrest?The person to be arrested flees of forcibly resists.?“…the officer may use all reasonable and necessary means to effect the arrest…”18-4011 Justifiable Homicide by OfficerHomicide is justifiable when committed by public officers and those acting in their command?In obedience to any judgement by a competent court (Death Penalty).?When reasonably necessary in overcoming actual resistance.“Use of deadly force shall not be justified in overcoming resistance unless the officer has:?Probable cause to believe the resistance poses a threat of death or serious physical injury to the officer or other persons.?When reasonably necessary in preventing rescue or escape, or in retaking inmates from any jail,?Or when reasonably necessary in order to prevent the escape of any person charged with, or suspected of having committed a felony provided:?The officer has probable cause to believe that the inmate,?Or persons assisting his escape,?Or person suspected of, or charged with the commission of a felony, poses a threat of death or serious physical injury to the officer or other persons.Learning Objective #4.: Identify and apply the legal issues associated with the use of intermediate weapons, such as striking instruments and chemical spraysINTERMEDIATE WEAPONS - WHAT ARE THEY? Batons, electronic control devices (ECDs), and oleoresin capsicum (OC) spray have been called intermediate weapons because they are a force option between a firearm and going “hands-on.” Suspects often claim that the officer should have gone hands-on, or done something less. Objective reasonableness is the test.NATURE OF THE INTRUSION What can an officer do with an intermediate weapon? That obviously depends on the weapon, and how it is used.BATONS A baton can be held at port arms to gently push a protestor back to the sidewalk. It can also be used to strike his attacking limbs. A baton is capable of causing deep bruising, blood clots capable of precipitating a stroke, and even death. The greater the intrusion, the greater that the governmental interest must be to justify it.OLEORESIN CAPSICUM (OC) SPRAY Oleoresin Capsicum (OC) spray comes from the oily extract of the cayenne pepper plant. Exposure to OC creates a deep burning sensation and difficulty breathing. It may cause a suspect to stop struggling. But OC hurts, and unless the suspect is decontaminated, it will continue to hurt after he is under control. There is no governmental interest in allowing the suspect to continue to suffer. See Lalonde v. Co. of Riverside, 204 F.3d 947 (9th Cir. 2000).ELECTRONIC CONTROL DEVICES Electronic control devices (ECDs) come in two modes – dart and drive-stun.DART MODE In the dart mode, the ECD uses compressed nitrogen to propel a pair of “probes” – or aluminum darts, tipped with stainless steel barbs – towards the suspect. The darts travel at about 160 feet per second and are connected to the ECD with insulated wires. When the darts strike the suspect, the ECD delivers a 1200 volt, low ampere electrical charge through the wires and probes and into the suspect’s muscles. The impact is as powerful as it is swift. The electrical impulse momentarily overrides the central nervous system and the suspect falls, momentarily incapacitated. That provides an opportunity for the officer to move in with handcuffs.STUN DRIVE MODE In the drive-stun mode, the officer removes the dart cartridge and pushes two electric contacts located on the front of the ECD directly against the suspect. In drive-stun, the ECD delivers an electronic shock. The drive-stun does not override the central nervous system like the dart-mode, but it is painful and will most likely cause a struggling suspect to release his grip on something.NATURE OF THE INTRUSION ECDs and OC have been credited with decreasing injuries among officers and suspects, alike. They may reduce the need for more serious force options, and unlike baton blows, the pain is generally temporary. But the reasonable officer gages the nature of the intrusion, based on the facts. A dart- mode ECD may seriously injure a suspect standing in a tree, climbing over a fence, saturated with flammable liquids, or over water. Spinal injuries or death may result from falls. People over water may drown and they have been seriously burned after the ECD ignited flammable liquids. Absent a strong governmental interest, such as when the suspect poses a significant threat, the ECD is excessive when any reasonable officer would know it is likely to cause that type of harm. See Harper v. Davis, 2014 U.S.App.LEXIS 13364 (11th Cir. 2014); Snauer v. City of Springfield, 2010 U.S. Dist. LEXIS 124770 (D. Or. 2010); and, Brown v. Burghart, 2012 U.S. Dist. LEXIS 73543 (E.D. Penn. 2012). THE GOVERNMENTAL INTEREST AT STAKE The nature of the intrusion (what the officer did) is weighed against the countervailing governmental interest at stake (why the officer did it). The determinative issue: After considering the severity of the crime at issue, could a reasonable officer believe that the intermediate weapon was reasonable to control the suspect’s active resistance, stop his flight, or deter an immediate threat?INTERMEDIATE WEAPONS ARE NOT REASONABLE WHEN THE SUSPECT IS UNDER CONTROL Consider the facts in Lewis v. Downs, 774 F.2d 711 (6th Cir. 1985). The suspect tried to stop two officers from arresting his mother and confronted them with an iron rake. One of the officers drew a pistol and ordered the suspect to drop it. He did, and while handcuffing and arresting him was not unconstitutional, a baton blow to the mouth - after he was handcuffed and being led away - was. See also Saunders v. Duke, 766 F.3d 1262 (11th Cir. 2014) (slamming a suspect's face into the pavement when he was handcuffed and not resisting would be an unreasonable, gratuitous use of force); but see also Mobley v. Palm Beach Cnty. Sheriff Dep't., 783 F.3d 1347 (11th Cir. 2015)(striking, kicking and tasing a suspect who refused to place his hands behind his back for handcuffs was reasonable after he led the officers in a high speed car chase, crashed, and then continued the pursuit on foot).ACTIVE RESISTANCE? In Padula v. Leimback, 656 F.3d 595 (7th CIr. 2011), Mr. Clement stopped his car in a company parking lot after feeling the onset of a diabetic reaction. When an employee told Clement to move, he responded in gibberish. Someone called 911 and police were dispatched to investigate an “intoxicated man.” They found Mr. Clement slouched over in the front seat of his car – apparently passed out. They shook and tried to revive him and told him to get out of the car. Clement only responded in an angry tone. One of the officers described Clement as unkempt; that his eyes were bloodshot; and that the interior of the car smelled like stale beer. When the officers opened the car door and began to pull Mr. Clement out, he flailed his arms. An officer managed to handcuff one arm. Clement would not give-up the other and the officer struck his free arm with a baton. Next, Clement began to kick and try to get up. One of the officers struck Clement’s kicking legs three times with a baton. In the process of moving him from the car to the ground, another sprayed mace in Clement's face because he was swinging his arms as if he were trying to strike the officers. A paramedic arrived. By this time Clement was laying on his side. (The officers apparently understood the danger of positional asphyxia. See “After the Fight,” below.) Clement’s blood sugar was low, and suspecting that something was seriously wrong, he was taken to the hospital. There, one of the officers looked in Clement’s wallet for the first time and found his diabetic card. Clement’s grandmother later found his diabetic kit when she retrieved the car. Mr. Clement died two weeks later of natural causes and his Estate sued. The Estate first alleged that the officers did not have probable cause to arrest him and even if they did, the force was excessive. The Seventh Circuit disagreed. PROBABLE CAUSE TO ARREST? There was ample evidence that Clement was driving under the influence of alcohol - - and the officers did not see the diabetic card until later. Moreover, Clement was not wearing a diabetic necklace or bracelet to alert the officers that something else was wrong. Finally, the diabetic kit on the car seat could have also been overlooked in the heat of the moment.WAS THE FORCE EXCESSIVE? The force was not excessive, either. Clement did not get out of the car. He had to be pulled out, and then flailed his arms and kicked. A witness also described the baton blows as stern, but not severe. A reasonable officer could believe that the mace and measured blows were necessary to control Clement and effect the arrest.THREAT? In baton training, the Physical Techniques Division of the Federal Law Enforcement Training Center teaches officers to target the suspect’s large muscle groups. But fights are dynamic encounters and less than precision strikes may still fall within the range of reasonableness. For example, in Cotton v. Busic, 793 F.Supp. 191 (S.D. Ind. 1992) officers responded to a call that Bobby Cotton was causing a disturbance. Cotton was a schizophrenic and off his medication. He met the officers with hunks of concrete in each hand and refused to put them down. A scuffle ensued. Cotton got one of the officers in a “bear hug.” One of the officers described him as “strong as hell.” The officers struck Cotton with nightsticks and flashlights, and when the fight was over, Cotton was missing one eye. The district court stated, “A police officer need not suffer brutalizing injury before he inflicts it; rather, the restraint on an officer’s use of force is that it must be reasonable...”SERIOUSNESS OF THE OFFENSE? The severity of the crime may also alert the officer to a threat. In Kellough v. Bertrand, 22 F.Supp. 2d 602 (S.D.Tx. 1998) officers had facts to believe Mr. Kellough was an armed robber. Officers stopped and ordered him out of his car. He got out in a non-threatening manner. But Kellough did not immediately lie face down on the ground as the officers ordered. “What did I do?” he asked. That caused an officer to kick his legs out from under him. As he fell, another struck him on the arm with a flashlight. Even accepting Kellough’s argument that he exited the car in a non-threatening manner, his refusal to follow the officer’s orders and to lie face down on the ground could cause a reasonable officer to employ some force to make him. While the court described the blow with the flashlight as “troubling,” it was not unreasonable because it occurred before Kellough was under control. Kellough, 22 F.Supp at 609. See also Mobley v. Palm Beach, 783 F.3d 1347 (striking, kicking and tasing a suspect who refused to place his hands behind his back for handcuffs was reasonable after he led the officers in a high speed car chase, crashed, and then continued the pursuit on foot). CHANGE THE FACTS, CHANGE THE ANSWER? But what if the crime at issue in Kellough was possession of child pornography, not armed robbery? The same urgency and force to get him on the ground might not fall within the range of reasonableness. Still, the seriousness of the offense is only one factor that might alert an officer to a threat. In Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004) an officer stopped Mr. Draper because the light was out over his license plate. The officer asked Draper for documentation five times. Instead of retrieving it, Draper accused the officer of harassment. He paced beside the road, yelled, and cursed, “How about you just go ahead and take me to f---ing jail…” and “I don’t have to kiss your damn ass because you’re a police officer.” (Driving without the light and failing to provide the documents were arrestable offenses and the officer decided to effect one.) After the fifth request for documents, the officer promptly shot Draper with an ECD in the dart-mode. Draper fell, was quickly handcuffed, and taken into custody. Draper’s argument went like this: “There was no need to use any force. I would have gladly complied with the officer’s arrest commands.” Draper 369 F.3d 1270, 1277. On the other hand, the officer believed that arrest commands would have only escalated the matter. The reasonable officer settled the dispute. Based on the facts, a reasonable officer could believe that a verbal arrest command, accompanied by attempts to handcuff Draper, would escalate an already tense and difficult situation into a more serious physical struggle and cause either the officer or the suspect to be seriously hurt. Id. at 1278.AN ARTICULABLE THREAT? The facts made it reasonable to believe that a threat existed in Draper. In Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010) the Ninth Circuit held that the facts fell short. Mr. Bryan drove onto Coronado Island one morning and stopped at an intersection. A police officer noticed that he was not wearing his seat-belt and directed Bryan to pull to the side of the road. Bryan did so, but he began to pound the steering wheel and to curse (… apparently upset about the pending traffic ticket). Then he got out of the car. Wearing only boxer shorts and tennis shoes, he must have looked strange. Adding to his bizarre behavior, the slightly clad young man began to yell gibberish, expletives (though apparently not at the officer) and to hit his thighs. Bryan 630 F.3d at 826- 827. The officer was about twenty to twenty-five feet away from Bryan when, without warning, the officer shot Bryan with an ECD in the dart- mode. Bryan fell to the pavement, shattering his front teeth. The Ninth Circuit distinguished the facts in Bryan from those in Draper. The only similarities between the two cases were that both men were stopped for a traffic violation; they were loud; and, they were shot by an ECD. Bryan at 828. In Draper, a reasonable officer could believe that a threat existed and that the ECD was necessary to effect the arrest. Draper was close to the officer, belligerent, and argumentative with the officer. Bryan was further away and appeared to be angrier with himself.MULTIPLE ELECTRO-SHOCKSEach application of the ECD must be objectively reasonable. Not all of them were in Beaver v. City of Federal Way, 507 F.Supp. 2d 1137 (W.D. Wash. 2007).THE FACTS Mr. Beaver was a burglary suspect. He fled from the responding officer, but a dart-mode ECD brought him to an abrupt halt. Besides just flight from a serious offense, other factors added to the reasonableness of the ECD. Beaver was about the same size as the officer. The facts also suggested he was under the influence. He was sweating, his veins were bulging, and the officer said he had that far-off look.Once down, the officer ordered Beaver in a loud voice to roll over on his stomach. Instead, Beaver tried to get up - and sixteen seconds after the first application, he was shocked a second time. Again, the officer commanded Beaver to roll over on his stomach and to extend his arms. Beaver did not immediately comply, and two seconds after the second application, he was shocked a third time.Then a back-up officer arrived. But conflicting commands – one for Beaver to lie on his stomach and another to lie on his back – were given by the two officers. Beaver apparently did not know what to do, and ten seconds after the third, he was shocked a fourth time.Now two officers now stood over Beaver. Beaver remained on the ground with his arms curled underneath his chest. No conflicting commands were given this time. Both officers ordered him to show his hand, but Beaver kept them under his chest, and twenty-two seconds after the fourth, he was shocked for a fifth and final time. Beaver finally extended his arms for handcuffs.THE FIRST THREE SHOCKS WERE REASONABLE The court had no trouble with the first ECD application, but expressed some concern over the second and third. After Beaver was knocked down, a witness testified that Beaver said “I can’t” in response to the officer’s commands. So did he have the ability comply? An expert witness also testified that Beavers’ actions (trying to get up) may have been as much a reaction to being shocked as an intentional effort to resist arrest. And finally, the period between the second and third shock was only two seconds, making it difficult to see how Beaver even had the opportunity to comply. Still, the court held that the first three shocks fell with the range of reasonableness. Beaver 507 F.Supp at 1145. The officer was alone and had to make split second decisions.NOT REASONABLE AFTER BACKUP ARRIVED But the analysis changed when backup arrived. With a backup officer, the threat diminished. Beaver at 445. Now it was two against one. And obviously, the conflicting commands by the two officers did not weigh in their favor. The officers tried to argue that Beaver could have been holding a weapon under his chest. Still, the officers had no facts to believe that. They had watched him role around on the ground and had not seen any bulges or other signs of a weapon. Id. at 1144 fn. 8. The court held that reasonable, less intrusive options were available. Instead of shocking Beaver, one officer could hold the ECD in the ready, while another went in with handcuffs.FLIGHT Stopping a burglary suspect’s flight with an ECD was reasonable in Beaver. In Cockrell v. City of Cincinnati,468 Fed. Appx. 491 (6th Cir. 2012) (not recommended for full text publication) the officer used an ECD to stop a fleeing jaywalker. The jaywalker fled when the officer tried to stop him, and without any warning, the officer shot him with a dart-mode ECD. The case against the officer was ultimately dismissed because the law did not clearly put the officer on notice that using an ECD was unconstitutional. It fell within that grey area between constitutional and excessive. See Cockrell 468 Fed. Appx. at 495 fn. 6. Still, causing neuromuscular incapacitation to stop a fleeing jaywalker…? Professional law enforcement would require a stronger governmental interest than that. CONTROL VS. COMPLIANCEIntermediate weapons are sometimes called control tools. They are used to control a suspect’s active resistance, deter a threat, or stop his flight. They are not compliance tools. This problem is sometimes called passive resistance. Applying the facts to the Graham factors, the crime at issue is minor. The suspect is not attempting to flee and there is no articulable threat. The problem? The suspect simply refuses to obey the officer’s arrest commands. NOT A COMPLIANCE TOOL VIDEO: This is the video from the Headwaters case. You will be discussing this case at length later on. This is to show the students that when they have discretionary time, they should make use of it when deciding what force options they have to available and whether they are appropriateOC was used like a compliance tool in Headwaters Forest Defense v. Co. of Humboldt, 276 F.3d 1125 (9th Cir. 2002). This case concerned three nonviolent protests against the logging of ancient redwood trees in the Headwaters Forest. The protestors linked themselves together with self- releasing lock-down devices and sat-down. The officers warned them that OC would be used if they did not leave. When they refused the officers used it. The officers sprayed them and applied the OC directly to their eyes with Q-tips.OC FOUND EXCESSIVE These types of protests were not new to the officers. Previously, the officers had used electric grinders to safely remove the lock-down devices - and the protestors - in a matter of minutes. And the officers had done so, previously, without causing pain or injury to anyone. Without apparent explanation, OC was used here. The Ninth Circuit found that the OC was excessive.STUN-DRIVE ECD DEEMED REASONABLE But in Crowell v. Kirkpatrick, 400 Fed. Appx. 592 (2nd Cir. 2010) the Second Circuit held that a stun-drive ECD was reasonable – and did so under circumstances similar to those in Headwaters. Several protestors chained themselves to heavy barrel drums. Like the protestors in Headwaters, they could have released themselves anytime they wished. When they refused to leave, they were warned that the officer intended to use a stun-drive ECD to make them. They were told that the ECD was painful and they were given another opportunity to release themselves before the ECD was used. They were shocked when they did not leave. And before more shocks, they were warned again.DISTINGUISH THE TWO CASES So how does the reasonable officer distinguish Headwaters and Crowell? One explanation may be that the Ninth Circuit’s opinion about what a reasonable officer would do is different than the Second’s. But the better explanation may be in the facts.DIFFERENT FACTS? For one, a stun-drive ECD is arguably less intrusive than OC, particularly when the OC is applied directly to the eyes with Q-tips. The court also stated that a sense of urgency arose when one of the protestors asked an acquaintance at the scene to a call other members of their group to return to the property. And still another difference was that the officers in Headwaters had previously removed the lock-down devices in minutes. In Crowell, the Court believed that the chains could not be removed by a more conventional means.THE OFFICERS IN CROWELL USED THEIR TIMEStill, would a conventional means not include a set of bolt- cutters in a police car, or even back at headquarters? The Second Circuit did not say. Perhaps the real difference is that the Court was satisfied that the officers used their available time to find a force option that fell within the range of reasonableness. The more time, the more reasonable options the officer has to consider.MYTHS VS. REALITY No subject is plagued with more myths than use of force. What follows are some of those myths about using force, and the law.I THOUGHT I HAD TO FEAR FOR MY LIFE One common myth is that an officer must fear for her life before shooting a suspect with a firearm. “I feared for my life” is like saying, “I did it for officer safety.” Absent the facts, it is merely the officer’s subjective opinion.I THOUGHT YOU HAD TO SEE THE GUN More myths are that the officer must see the suspect’s gun, and if it turns out that the suspect does not have one, the force is unreasonable. Along those same lines it has been said that an officer cannot shoot someone in the back - or until the suspect actually points the gun in the officer’s direction. The law, however, does not require a confirmed threat. It requires facts to believe that one exists. Pollard v. City of Columbus, 780 F.3d 395 (6th. Cir. 2015) (while a subsequent investigation revealed that the suspect did not have a gun, shooting him 23 times was reasonable when (1) the officers had a warrant for his arrest for violent felony offenses; (2) he led the officers in a high- speed chase; (3) he refused to show his hands after a crash; (4) and instead, reached down into the car and then came back-up with his arms together in a shooting posture.I THOUGHT "DEADLY FORCE" WAS ONLY REASONABLE WHEN RESPONDING TO A FELONY The seriousness of the offense is only one factor in determining the governmental interest for using force. The nature of a suspect’s resistance [or flight] from even a minor offense may pose an immediate threat. Consider what happened in Scott v. Harris.I THOUGHT YOU ALWAYS HAD TO GIVE A WARNING A warning adds to the objective reasonableness of a force option; but, the reasonable officer understands that warnings are not always feasible in a tense, uncertain, and rapidly evolving situation.SHOOTING SOMEONE MORE THAN ONCE IS EXCESSIVE FORCEThe Supreme Court stated, “It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended. See Plumhoff v. Rickard, 188 L. Ed. 1056 (2014); McGrath v. Tavares, 757 F.3d 20 (1st Cir. 2014) (multiple shots fired into a car to end a car chase were reasonable because a reasonable officer could believe they were fired to end a threat of serious bodily harm); Krause v. Jones, 765 F.3d 675 (6th Cir. 2014) (the fact that an officer fired his weapon on fully automatic, striking the suspect 21-times, was not relevant as no evidence showed that the officer continued firing after the suspect surrendered); Pollard v. City of Columbus, 780 F.3d 395 (6th. Cir. 2015) (officers fired 80 shots at the suspect, 23 of which hit him). ISN'T AGENCY POLICY THE LAW? The Supreme Court established the law in Graham v. Connor. Agency policies may establish restrictions on using force more restrictive that what the law requires. Common policy restrictions include prohibitions against warning shots, shooting at moving vehicles, carrying back-up weapons, or engaging in high-speed vehicle pursuits. Following agency policy is certainly important. Failing to do so may result in administrative sanctions. Still, if an officer uses a back-up weapon in violation of policy, the court will only decide whether the force was objectively reasonable. See for example Brown v. City of New York, (2nd CIr. 2015) citing Davis v. Scherer, 468 U.S. 183, 194 & n 12 (1984). The Plaintiff's argument that New York law required a police officer to observe the facts supporting an arrest for disorderly conduct was unavailing; a defense of qualified immunity is not displaced by a violation of state law requirement. See also Cass v. City of Dayton, 770 F.3d 368 (6th Cir. 2014) (the fact that officers may have violated department policy by placing themselves in the path of vehicle did not change the courts finding that the force was reasonable).I THOUGHT YOU HAD TO USE THE MINIMAL FORCE Like the perfect answer, determining the minimal amount of force necessary to effect a seizure can only be found by hindsight.Learning Objective #5.: Identify and apply when a law enforcement officer violates a suspect's due process rights after seizing a suspectDELIBERATE INDIFFERENCE TO AN ARRESTEE'S SERIOUS MEDICAL NEEDS VIOLATES DUE PROCESS Custody creates the duty. Once an officer takes control of a suspect, the officer cannot be "deliberately indifferent" to the suspect's sufficiently serious medical needs. See Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983) (holding that the Due Process Clause requires the responsible governmental agency to provide medical care to suspects in police custody who have been injured while being apprehended by the police). However, if the officer does not take the suspect into custody, or create some other special relationship with the suspect, the government does not have a constitutional duty to act by providing care or protection. See Deshaney v. Winnebago, 489 U.S. 189 (1989); Town of Castle Rock v. Gonzalez, 545 U.S. 748, 756-757 (2005); Gladden v. Richbourg, 759 F.3d. 960 (8th Cir. 2014)(police did not create a duty to the decedent when they drove him to the county line as a favor and he subsequently died of hypothermia) DELIBERATE INDIFFERENCE To prevail on a claim against law enforcement officers for failure to provide medical care to the arrestee, a plaintiff must show that the officers were "deliberately indifferent" to the arrestee's "sufficiently serious" medical need. Deliberate indifference requires that an officer (1) be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists; (2) draw the inference; and (3) act or fail to act in a manner demonstrating reckless or callous indifference toward the individual's rights. Jones v. City of Cincinnati, 507 Fed. Appx. 463, 469 (6th Cir. 2012) (unpublished) citing Ewolski v. City of Brunswick, 287 F.3d 492, 513 (6th Cir. 2012).INSUFFICIENT EVIDENCE THAT THE OFFICER WAS DELIBERATELY INDIFFERENT TO POSITIONAL ASPHYXIAIn Jones, 507 Fed. Appx. 463 the officers did not disregard Jones's substantial risk of positional asphyxia. By 6:03:34, the officers realized that Jones should be rolled and started rolling him. Six seconds later, the officers had Jones on his back. They also realized that the firefighters left and immediately called for a rescue unit. During the two minute wait for the firefighters, the officers checked Jones's breathing, monitored his pulse, rubbed his sternum, turned him on his side, and retrieved a first-aid box. The officers also shouted for the firefighters to hurry to Jones's side. The officers' attempts to aid Jones undermine the claim that they were deliberately indifferent to his substantial medical risk.SUFFICIENT EVIDENCE THAT THE OFFICERS WERE DELIBERATELY INDIFFERENT The officers' actions in Jones were different than the inaction in Estate of Owensby v. City of Cincinnati, 414 F.3d 596, 603 (6th Cir. 2005). Here, the officers were denied qualified immunity where the evidence demonstrated that officers, after beating a suspect, locked him in the back of a police cruiser, and observed him in significant physical distress. They made no attempt to summon or provide any medical care until six minutes later, but instead, greeted each other and prepared for their superiors' arrival by adjusting their uniforms.FAILURE TO PROVIDE CPR MAY SHOW A DELIBERATE INDIFFERENCEAn officer trained in CPR may be deliberately indifferent to a suspects sufficient medical needs by failing to perform CPR. See McRaven v. Sanders, 577 F.3d 974 (8th Cir. 2009)("An officer trained in CPR, who fails to perform it on a prisoner manifestly in need of such assistance, is liable under § 1983 for deliberate indifference."); Tiamka, 244 F.3d at 633 (holding that corrections officers were not entitled to qualified immunity on deliberate indifference claim where they failed to provide CPR or to approach prisoner for ten minutes, even though the officers were trained in CPR and the prisoner's condition was obviously life threatening); Sparks v. Susquehanna Cnty., U.S. Dist. LEXIS 29320 (M. D. Pa. Apr. 3, 2009)(concluding that a jury could find that correctional officer was deliberately indifferent when she was delayed in calling for assistance and was unwilling to perform CPR despite having been trained); Ashworth v. Round Lake Beach Police Dept., 2005 U.S. Dist. LEXIS 14844 (N.D. Ill. July 21, 2005)(holding that the failure of officers to perform CPR after calling an ambulance raises a jury question of deliberate indifference.)BEST PRACTICES After the officer uses force, the officer should render aid to the extent that the officer is trained and call EMS.DON'T ASSUME Presuming that the suspect is "just playing possum" may create unnecessary litigation. The best practice is to "play it safe" and call EMS.TRANSPORTING THE PRISONER When transporting the prisoner, sit the prisoner up, fastens his seat-belt, and be alert for physical distress. Take the prisoner to EMS or the hospital if he is distressed.HANDING THE PRISONER OFF TO THE HOLDING FACILITYAdditionally, after the officer takes the suspect to jail, the officer should pass-on, and document information about the suspect's medical condition provided to the holding facility.Learning Objective #6.: Identify and apply the elements of "qualified immunity" and when a law enforcement officer sued for excessive use of force is entitledQUALIFIED IMMUNITY Suspects may sue the officers seizing them for excessive force, but the officer does not always have to stand trial. The officer can request qualified immunity.THE RATIONALE Qualified immunity is a defense to standing trial in a civil case for a constitutional tort. It is raised by the officer well in advance of trial. The rationale behind qualified immunity is two-fold. First, it permits officers to perform their duties without fear of constantly defending themselves against insubstantial claims for damages. On the other hand, it allows the plaintiff to recover damages when any reasonable officer would know that the officer violated the plaintiff’s constitutional rights.GETTING QUALIFIED IMMUNITY Qualified immunity is raised by the officer. It protects the officer in an individual capacity, not the governmental entity employing her. Qualified has two elements. The officer may receive qualified immunity under either one.DID A CONSTITUTIONAL VIOLATION OCCUR? This element focuses on the facts. Based on the plaintiff’s version of what happened, could a reasonable officer believe that the force was reasonable? If no constitutional violation occurred, there is obviously no basis for the lawsuit, and the suit is dismissed. In Scott v. Harris, the nature of Mr. Harris’ flight (by means of a speeding vehicle) posed a significant threat of serious physical harm to others and made what Scott did (pushing Harris off the road) fall within the range of reasonableness. See Scott v. Harris, 550 U.S. 372, 386. WAS THE LAW CLEARLY ESTABLISHED? The second element focuses on the law. Even if the force was unconstitutional, the officer may still receive qualified immunity if the law was not clearly established at the time. The law was not clearly established when the officer shot Garner. Recall that the officer in Tennessee v. Garner relied on a state statute that authorized all necessary force to stop any fleeing felon. The Supreme Court later declared the statute unconstitutional in so much as it allowed deadly force to seize any fleeing felon. But the officer had no way of knowing that. The force was unconstitutional, but the law was not clearly established at the time, and he received qualified immunity. See Garner v. City of Memphis, 600 F.2d 52 (6th Cir. 1979).PLUMHOFF V. RICKARD VIDEO: This video is from the North Carolina Justice Academy. The video explains the relationship between Scott v. Harris and in the Plumhoof v. Rickard cases.Scott v. Harris left open whether shooting a fleeing motorist was reasonable. The Supreme Court answered that question in Plumhoff v. Rickard, 188 L.Ed. 1056 (2014). Like Mr. Harris, Mr. Rickard started a high-speed pursuit when he fled from a minor traffic offense. Unlike Harris, he had a passenger in the car. The chase exceeded 100 miles per hour and lasted over five minutes. Rickard passed more than two dozen vehicles, several of which were forced to alter course. He eventually collided with a police car and came to a temporary standstill. But that did not end the chase. With his front bumper flush against a police car, Rickard hit the accelerator causing the car’s tires to spin. Officer Plumhoff fired the first three shots into the car. Rickard then threw the car into reverse and started to flee down the street. 12 more shots were fired into the car. Richard crashed and he and his passenger died of some combination of gunshot wounds and injuries from the crash.LOWER COURT DENIES QUALIFIED IMMUNITY The lower court believed there were important differences between this case and Scott which made the force excessive; specifically, (1) Harris, unlike Rickard had a passenger in his car, (2) Harris was traveling at a high rate of speed while Rickard was only traveling about 5 miles per hour; and (3) Harris was pushed off the road and Rickard was shot at 15-times.THE SUPREME COURT REVERSED Those details did not make any difference. Rickard's flight posed a significant threat to others and all 15 shots were fired by the officers to end that threat. And the passenger? The issue in Rickard's case was whether the officers violated Rickard's Fourth Amendment rights; not the passenger's. Plumhoff, 188 L.Ed. at 1068. WAS THE RIGHT VIOLATED CLEARLY ESTABLISHED? The Supreme Court went on to explain that even if the officers had violated the constitution, they would still be entitled to qualified immunity because the law did not clearly establish that shooting a fleeing motorist to end a high- speed car chase was unconstitutional. Plumhoff 188 L.Ed. at 1070. “Clearly established” means that the law must be sufficiently definite so that any reasonable officer would have understood that he was violating it. Id. at 1070 citing Ashcroft v. al-Kidd, 179 L.Ed. 2d 1149, 1153 (2011). In other words, the law at the time must place the situation confronted by the officer beyond debate. Id. citing Ashcroft, 179 L.Ed. 2d at 1159.QUALIFIED IMMUNITY UNDER EITHER ELEMENT In deciding whether an officer is entitled to qualified immunity, the court is not required to go in any particular order. Pearson 555 U.S. 223, 236-237 (2009). The court may find, “We don’t know if the officer violated the constitution; however, we have reviewed the Supreme Court and circuit decisions and find that the law did not clearly put the officer on notice that the force was excessive.” In short, the court may opt to answer the easier of the two questions, saving the harder, constitutional one for another day.SAN FRANCISCO V. SHEEHAN - LAW WAS NOT CLEAR In San Francisco v. Sheehan, 135 S.Ct. 1765, 1778 (2015) the Court found wanting any "robust consensus of cases of persuasive authority" that would have alerted the officers that they were denying Ms. Sheehan a federal right and dismissed the case because the law was not clearly established.FACTS: Ms. Sheehan lived in a group home for people suffering from mental illness and was not taking her medications. When a social worker entered her room, she threatened to kill him with a knife. Two officer were dispatched to the home to take Ms. Sheehan into custody for observation and treatment. When the officers entered her room, she charged them with a knife, and the officers retreated outside to the relative safety of the hallway. In the hallway, the officers had some options. They could wait for backup and try to de-escalate the situation or go back inside. They re-entered the room. Predictably, Sheehan charged the officers with a knife; predictably, her lawyer would argue, the officers were forced to shoot her.SUPREME COURT REVERSES: Even assuming the officers provoked the encounter - - and even assuming the provocation was unconstitutional - - the law was not clear as to when the officers could or could not go into the room. The Court found wanting any "robust consensus of cases of persuasive authority." Sheehan, 135 S.Ct. at 1765.QUALIFIED IMMUNITY DENIED To deny the officer qualified immunity, the court must find that the plaintiff’s version of the facts supports both of these elements: (1) a constitutional violation that (2) was clearly established. If the officer is denied qualified immunity, the case goes to trial. WHY SEND THE CASE TO TRIAL? In other words, why not simply find against the officer? The answer is simple. Denying the officer qualified immunity does not mean that the officer is liable for a constitutional tort. It means that there is a triable issue for the jury. During the qualified immunity analysis, the court is generally required to accept the plaintiff’s version of the facts as being true. (But see Scott v. Harris, 550 U.S. at 380 citing Federal Rule of Civil Procedure 56(c).) Where there is a material dispute between the plaintiff and the officer about what happened, the judge sends the case to trial to resolve the dispute.This seemingly unfair requirement (to accept the plaintiff’s story) is because qualified immunity dismisses the case and denies the plaintiff his day in court. The court says, “Mr. Plaintiff, we have looked at your version of the facts. No reasonable jury could find for you.” Before the court can say that, however, it must accept the plaintiff’s version of what happened as being true. The Fourth Circuit followed that rule in Cooper v. Sheehan, 735 F.3d 153. Recall that Cooper claimed that he merely walked out on his front porch with a shotgun to investigate a noise and that the officers immediately fired on him. The officers had a dramatically different story, but the Court had to accept Cooper’s. The case goes to trial. See also Williams v. Holley, 764 F.3d 976 (8th Cir. 2014)(an officer was denied qualified immunity in a case where he shot and killed a suspect/decedent because there was circumstantial evidence that the suspect was raising his arms to defend himself from gunfire rather than attacking the officer, as claimed).SO WHAT HAPPENS AT TRIAL? At trial, the burden of proof shifts back to the plaintiff. The plaintiff has the burden of proving that a constitutional violation actually occurred. Credibility is an important issue at trial. Who is telling the truth, the plaintiff or the officer? Force science experts may also testify and breathe life into the words, “…tense, uncertain, and rapidly evolving. ReviewYou may use objectively reasonable force to effect a seizure. The objective test requires close examination of the facts. This is done through the lens of a “reasonable officer on the scene.” The overriding issues in each use of force case is going to be based on the totality of the circumstances and could a reasonable officer believe the force used was reasonable. Remember, there are no perfect choices, only reasonable ones.Use of ForcePractical ApplicationINTRODUCTIONRAPPORT AND OPENING STATEMENTLearning Objectives1. Articulate the use of force in accordance with the constitutional standard.2. Identify factors that may cause unnecessary hesitation when an officer uses force3. Identify methods of overcoming unnecessary hesitation in use of force applications4. Identify the fundamentals of documenting a use of force incident- COVERED IN REPORT WRITING5. Identify human performance factors that impact use of force responses6. Identify critical elements of post incident procedures- WILL BE COVERED LATER IN THE ACADEMY7. Evaluate students’ performance in a use of force exercise- WILL BE COVERED DURING SCENARIO TRAININGLearning Objective 1: ARTICULATE THE USE OF FORCE IN ACCORDANCE WITH THE CONSTITUTIONAL STANDARD.Law enforcement officers may use reasonable force to complete a variety of different objectives. These objectives may include:a. Detentionsb. Frisksc. Arrestsd. Self Defensee. Defense of othersf. Defense of propertyg. Preventing a person from self-injuryh. Enforcing protective custody commitmentsi. Preventing a person(s) from destroying evidencej. Stopping or preventing riots and or crowd controlk. Preventing prisoner escapesINSTRUCTOR NOTE: If this section is being taught in conjunction with the previous section, then this portion is a quick review of the objectively reasonable standard. If this section is being taught as a standalone section, then a more detailed review of the following (up to the pre-assault indicators section) is required. OBJECTIVELY REASONABLEIn the U.S. Supreme Court decision Graham v. Connor (1989), the court stated “our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to affect it.”As defined by the Fourth Amendment, all searches and seizures of persons by agents of the government must be reasonable. The test of reasonableness is a common sense evaluation of what another “objectively reasonable” officer could have done in the same circumstances.The Court also stated that the use of force by an officer “in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen [is] properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard, rather than under a substantive due process standard.”The Court stated that based on the totality of the circumstances, “the reasonableness of a particular use of force must be judged from the perspective of the reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” The Court further noted that “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split second judgments in circumstances that are tense, uncertain, and rapidly evolving[.]”While “objective reasonableness is not capable of precise definition or mechanical application,” objective reasonableness will be determined based on the facts and circumstances known to the officer at the instant the force was used.In every use of force situation, officers must look at the totality of the circumstances that affect the reasonable use of force. There can be many aspects and or considerations within the totality of the circumstances that affect the reasonable use of force.Among the totality of circumstances that may govern the reasonableness of using a particular level of force, the Supreme Court emphasized four key factors in Graham v. Connor.1) Severity of the Crime2) Whether the suspect is an immediate threat to the safety of the officer or others3) Whether the suspect is actively resisting arrest, and/or4) Attempting to evade arrest by flightTotality of CircumstancesAdditional factors used by courts when applying the standard of Graham v. Connor that may also govern the reasonableness of using a particular force option are:a) The number of suspects and officers involvedb) The size, age, and condition of the officer and suspectc) The duration of the actiond) Whether the force applied resulted in injurye) Previous violent history of the suspect, known to the officer at the timef) The use of alcohol or drugs by the suspectAccording to research conducted by Dr. Darrell Ross while at Eastern Carolina University “approximately 89 percent of the incidents [where subjects resisted arrest], the officer encountered citizens under the influence, or suspected to be under the influence, of alcohol or drugs. Source: Assessing Patterns of Citizen Resistance during Arrest FBI Law Enforcement Bulletin June 1999(p.511)g) The suspect’s mental or psychiatric history, known to officer at the timeh) The presence of innocent bystanders who could be harmed if force is used or noti) The availability of officer weapons, such as pepper spray, batons, or electronic control devices.Pre-Assault IndicatorsLaw enforcement officers routinely observe behaviors that could indicate that an attack or an assault is likely to occur.These indicators are often referred to as pre-assault indicators, and can be used to articulate an officer’s reasonable force application.It is important that an officer understand that when these indicators are present, there is no legal requirement to wait for an assault to occur to utilize reasonable force. Specific nonverbal signals communicated by perpetrators may suggest nefarious intent. These signals, leaked out of the unconscious facet of the criminal mind and displayed via body language, need to be recognized and cataloged in the conscious mind of those in law enforcement. While not all inclusive, some examples of pre-assault indicators are:a) Verbal aggression yelling, swearing, etc.b) A change in posture stands up, balls fist, draws arm back preparing to punch, drops left or right foot back like a fighter or boxer, lowers center of gravity, shifts weight.c) Face becomes red, lips separate to show teeth, breathing becomes faster, lips become tight as breathing, face becomes pale, and perspiration appears on the skin.d) Individual ignores you, looks away or stares through you (1000 yard stare).e) Creates a false sense of security by becoming very cooperative or acting incapacitated.f) Aggression redirected to something/someone else, such as breaking pencils, kicking objects, yelling at bystanders, etc.g) Hands tighten, open or closed, arms and shoulders will shift.h) Individual may bob or rock back and forth while shifting eyes to possible targets.i) Individual may stop all motion in defiance or become rigid.j) Head will come down, chin tucked, eyebrows tightened and dropped.Jim Glennon is a nationally recognized police trainer and author who is currently the lead instructor for the Calibre Press Street Survival Seminar. Lt. Glennon provides excellent advice about recognizing pre-assault indicators that often lead to officers getting assaulted and sometimes killed.ScanningScanning is when a subject is observed paying attention to the surrounding area rather than the law enforcement officer. Someone who is scanning is usually moving his head from side to side while his eyes appear to be searching. There is usually little or no direct eye contact. Sometimes the scanning is obvious and the suspect will scan a complete 360 degrees, looking past the officer, to the left and right, and even turning around to assess the environment. The scanning may occur while the suspect is answering questions, listening to orders, and even complying with commands. The scanner literally appears as though he is looking for something, and he is: He is looking for the officer's backup, witnesses, escape routes or perhaps even his own compatriots. But what it is exactly doesn't matter — as far as the officer is concerned, it's all bad.The "Target Glance"Target glancing is a term used to refer to the obvious preoccupation an offender will have with a particular area of an officer’s body or with any of the officer's weapons. It can involve either staring or repeated glancing at the intended target. One of the most common target glances involves ocular attention on an officer’s gun, indicating that a subject is considering a "gun grab." However, other areas of interest to a “would be attacker” include the chin, the nose, the throat and the eyes. Any target glancing directed at the face generally indicates that the suspect is evaluating an attack of some sort, perhaps a punch. Targets can also involve the hip or upper leg area, obviously indicating the subject is measuring the possibility of a takedownClenchingWhether it's tightening the fists or clenching the teeth, constriction of muscles indicates physical stress and perhaps readiness for an attack. Prefight tensions will cause jaw muscle to bulge, fists to close and facial muscles to contract. If you pay close attention you may observe the trapezius (also called “trap”) muscles (the flat, triangular muscles that cover the back of the neck and shoulders) rise as the large muscles of the body constrict as if to prepare for physical contact or assault.VIDEO: This video is of a Muskogee, OK police officer who shoots an armed suspect at a wedding. During the contact, you can hear the officer telling the suspect to relax. You can see the tension in the suspect’s arms just before he runs. Eye BlinksAverage eye contact between two people is about three seconds. The average non-arousal blink rate is about the same, 20 times per minute. Under significant stress the human being will alter blink rate patterns in one of two ways: They will either blink rapidly (40 to 60 times per minute), or they will slow their blink rate down drastically (two to four times per minute). The latter of the two alterations is often referred to as the "thousand yard stare." It's often described as one person "looking through" the other person. Because it is stressed induced, the reason for the exhibited stress has to be considered in the totality of the circumstances. If you are questioning a subject and rapid blinking is evident, deception may be causing the stress. If the “thousand yard stare” is displayed while interviewing a suspicious person, then be aware that flight or fight is probably about to occur.The Pugilistic StanceAlso known as "the fighting stance," the pugilistic stance is almost always a precursor to an attack — or at least an indicator that one is being considered. The pugilistic stance is rather obvious: dropping one leg and side of the body (usually the strong side) behind the other. It may be accompanied by a fist clench, facial tightening and even a verbal warning. But police officers must recognize that any shifting of the weight or stance by the other person, no matter how slight, may be a significant indicator.VIDEO; This video is from a shooting involving an Oregon State Police officer in 2013. Notice the body language of the suspect as he gets out of the car. He fails to follow directions and changes position. Although not a “traditional fighting stance” takne as a whole, the suspect is communicating he is not going to cooperate. The Trooper in this case, reported that the suspect’s behavior made his senses go “sky high.” usually occurs when there are multiple suspects? it's the movement to the rear or side of a police officer by one or more of the suspects being engaged. Flanking is an attempt to find a position suitable for a successful attack. One of the most infamous and despicable examples of flanking in the law enforcement community involves the murder of Constable Darrell Lunsford in Nacogdoches County, Texas, on Jan. 23, 1991. The suspects Lunsford stopped employed flanking maneuvers (as well as demonstrating the pugilistic stance) prior to the attack that brought Lunsford to the ground.Video- The video is from Lunsford’s in-car camera. Discuss the movements of the suspects, the lack of control Lunsford has with the suspects, and how they gained the advantage. Discuss proper search procedures for cases such as this. Also, discuss the possibility of backing out of a situation that cannot be handled safely. Let them go, follow them while waiting for cover and then reinitiating the stop. in ResponseOften, when intensely engaged in the process of internal thought, a person’s response time to questions becomes protracted. This is because people are not particularly good at divided attention tasks. The more intense or stress filled one task may be, the less likely it is the person can multitask.Contemplating an attack on an officer would be considered an intensely internal thought process. Measuring odds, determining a target and pondering the consequences of such an attack requires a tremendous amount of concentration. Answering questions while in such a state is not easy. Therefore, a police officer may notice a distracted gaze and hesitation between questions posed and answers given.Removal of the hat, jacket etc.Subjects wearing hats, jackets and even glasses will often remove them prior to initiating an assault.TattoosSome can be read like a book. Gangs, prison time, even previous crimes, can be observed if enough 'tats' are visible. Even a suspect's truthfulness can sometimes be determined by a tattoo. For example, if you ask someone his name and if he responds 'Joe' while sporting a tattoo of 'Mike' on his body that would certainly raise a flag.Illogical responsesStories or answers that make no sense should be a dead giveaway that someone is using part of their brain to formulate a plan instead of being truthful and cooperating with us.Other FactorsIn addition to the facts and circumstances identified by the courts, each officer, as they attempt to deescalate (reduce the intensity of the conflict or potentially violent situation) should also address any other applicable considerations such as those listed below specific to each incident.1) What is the officer's experience level with the threat?2) Can the subject, who is resistant, physically comply with the issued commands or directions?3) Does the officer(s) have the ability to disengage or engage a contact?4) Could the officer(s) actions or tactics precipitate a change in the immediacy of a threat to the law enforcement officer?5) Is it likely that my force application will have the desired results?6) Is the officer(s) placing himself in a position of disadvantage by using a tactic that, while lawful, is not strategically appropriate for the threat presented?7) How much time does the officer have available to respond? Can he reduce the intensity of the conflict or potentially violent situation by taking a more reasoned approach e.g. call/wait for backup or must the officer be more reflexive e.g. use a straight arm bar take down to gain immediate control of the individual or situation in their response?8) What is the environment (night, day, rain, snow, ice, heat, water, terrain, confinement) of the contact?9) What available weapons are in the immediate vicinity to the subject?10) What is the distance from the officer to the subject?11) Is your action(s) worth the risk of injury to yourself?12) Am I injured? How bad? Am I exhausted? Can I continue?k. What was determined or discovered after force was used cannot be used to justify or condemn the use of force and would normally not be admissible evidence in a criminal proceeding.l. The standard of objective reasonableness set forth in the Fourth Amendment does not require that officers choose the least intrusive level of force, only a reasonable one.Regarding force that could cause serious bodily injury or death, if the application of force is reasonable then:INSTRUCTOR NOTE: Instructors should note the references to lower court decisions in the Graham v. Connor, Tennessee v. Garner, and Scott v. Harris cases as they help clarify and define the courts position.1) The implement used to apply the force is of no consequence.2) The degree of injury sustained by the assailant is of no consequence.3) The relative positioning of the assailant to the officer is of no consequence.Video: The video is of a news story related to Dallas, TX PD using a robot to deliver an explosive device to kill the suspect who’d shot and killed five Dallas area police officers and wounded several others.There is a public perception that law enforcement officers are forbidden to shoot an assailant in areas other than the front of the assailant’s body or when the assailant is doing anything but directly attacking the officer. The Constitution and/or the Supreme Court does not restrict nor imply any limitation of employment of force based solely on the assailant’s body position.4) The assailant is responsible for the injuries incurred not the officer who delivered the force.5) Officers must recognize that agency policies may be more restrictive (in those situations where the officers force option may lead to serious bodily injury or death ["deadly force"]) than what is required by law.Learning Objective # 2: IDENTIFY FACTORS THAT MAY CAUSE UNNECESSARY HESITATION WHEN AN OFFICER USES FORCEMany factors play a critical role in the officer’s ability to react without hesitation to a perceived threat or resistance. In many cases police officers have misconceptions about the use of force based upon prior law enforcement training, life experiences, media presentation of use of force incidents, and other factors. This section discusses how officers can identify such factors, and develop an effective way of dealing with them to enable reasonable responses in use of force incidents.DINKHELLER MURDERVIDEO: This video is of the Deputy Dinkheller muter in 1998. It shows his hesitation to use force in this situation which resulted in his death. The suspect in this case was later executed. consequences of well-intended trainingThe following are some examples:21 foot "rule"Originating from research by Salt Lake City trainer Dennis Tueller "rule" states that in the time it takes the average officer to recognize a threat, draw his sidearm and fire two rounds at center mass, an average subject charging at the officer with a knife or other cutting or stabbing weapon can cover a distance of 21 feet. The original article, "Edged Weapon Defense: Is or as the 21 foot Rule Valid?” comes from Though mistakenly taught as a "rule", the takeaway for the law enforcement officer should be the importance of utilizing cover or concealment and maintaining distance to give the officer more time to react where feasible."Center mass" equals center chestMany law enforcement officers, as an indirect result of their firearms training, come to believe that the center of mass equals the center of the chest. This is because on the range, officers are taught to shoot at the center of the target, traditionally the chest area.Officers should understand that in reality, they may not always be in a situation or position where the full body of the subject is exposed. If it is reasonable to shoot, the officer should attempt to deliver rounds to the center of the mass that is presented to them.Two rounds then holsterIn an effort to build skills to make an officer proficient in drawing and presenting their firearm, traditional firearms drills often require the student to draw fire two rounds and re-holster.This can mistakenly lead to an officer (where it is otherwise reasonable) to draw, fire two rounds and prematurely re-holster their firearm prior to the threat being stopped.Verbal WarningsThe court stated in Tennessee v. Garner that "where feasible, the officer must give some warning of the intent to use deadly force.""Ask, tell, make"In an attempt to provide communication strategies for officers to use when dealing with citizen contacts, officers are sometimes taught to follow a progression of steps prior to utilizing force. Typically, first you ask a subject to do something, then you tell them to do something, and finally you make them do something.Critical decision making requires officers to consider the totality of circumstances in any given situation. To successfully reduce the intensity of the conflict or potentially violent situation (deescalate) and lacking an immediate threat, an officer may have time to gain an individual’s cooperation using a variety of communication strategies. However, other circumstances (particularly those where an immediate threat is more prevalent) may require an officer to act immediately to gain control of a subject or situation.Psychological Inhibitions- Resistance to Using Deadly ForceHuman beings, like most animal species, do not naturally prey upon others in the same species. Humans have a natural inhibition to killing other human beings. The exception to the rule is sociopaths, who do not feel empathy when killing other human beings.As law enforcement officers, proper training can improve the ability of the officer to respond with reasonable force that could cause serious bodily injury or death without unnecessary hesitation.Proper training consists of reality based training in the areas of use of force, critical decision making, communications, firearms, and officer response tactics.Personal BeliefsThe officer must resolve personal issues within themselves such as commitment to mission, mortality, and willingness to sacrifice.Many officers fear that they will become the victim of close range aggression. An even greater fear exists that they may have to inflict harm or cause injury to another. Ultimately, both fears cause anxiety, tentativeness, and hesitation.An individual’s religious beliefs may affect their ability to inflict aggression on others. An officer may cause harm to themselves or others if they unnecessarily hesitate based upon their religious beliefs.Legal misunderstanding (Myths vs. Realities)Whether due to improper training or past experiences, many police officers lack a fundamental understanding of the law that surrounds the use of force leading the officer to develop "myths" about what the officer can do according to the law.We discussed in Learning Objective #1 the Constitutional standards for the use of force, but there are many myths about use of force that are pervasive in the law enforcement community. Examples of those myths include:Minimal forceMany officers have been taught (according to agency policy) that police officers must use the minimal amount of force available during a use of force incident.The correct standard for use of force is “objective reasonableness” not “minimal force.” “Minimal force” is a subjective standard, inconsistent with the precedent set forth in Graham v. Connor (1989)Exhaustion of alternative force options not requiredSome officers may believe that "deadly force" is employed as a last resort and only when all lesser means have been exhaustedThe legal standard of reasonableness does not require officers to select the least intrusive means, only a reasonable one.A domino effect occurs when reasonable use of force is not applied immediately to gain control. Circumstances of the incident may become more dangerous, out of control, or unmanageable for the officer.The officer’s ability to choose a reasonable force option quickly and efficiently erodes as the complexity of the situation increases.Officers "have" a duty to retreatPolice officers have no duty to retreat in an effort to avoid using force on a suspect.Officers must remember that based upon the totality of circumstances, disengaging from a threat in order to gain a tactical advantage and put themselves into a position of advantage may be a reasonable response to a critical incident.Agency Use of Force PoliciesAgency policies may unnecessarily restrict use of force by officers.Policies that force an officer to choose the least intrusive force option places the officer in a position where he has to make a subjective determination instead of an objectively reasonable one.Knowing and understanding the constitutional standard and the agency’s Use of Force policy are essential elements of mental preparation. When officers are confident that using force is reasonable, they are mentally prepared to win and act with competency.INSTRUCTOR NOTE: As stated in Graham v. Connor, “the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application….” The Court stated, “Imposing such requirements would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress and subject to the exigencies of the moment.”Learned BehaviorNo two police officers have exactly the same background. Some may have military experience, some may be college graduates and all were raised with different values systems by their parents. Individuals entering law enforcement must recognize some of the behaviors they have learned throughout their life may impact their decision to use force.Example: Most boys growing up are taught from a very young age that it is wrong to hit a girl. This does not require conscious thought, but an officer faced with a situation where he is required to use force on a female may hesitate momentarily due to the learned behavior of never hitting a girl.Remember the Tulsa Police video from the legal aspects training where the officer drove over the female suspect who’d been shooting at them. She had also been involved in a number of gun crimes previously to the recorded incident.Police officers must understand that there is no universal description of a person who may resist arrest or fight with the police. They come in every shape, size, race, creed and color. Officers must recognize how personal biases and learned behaviors could affect their decision to use force.Societal ExpectationsPolice officers are often held to a very high standard by the community they serve. This is a reasonable expectation.Some societal expectations may far exceed the expectations of the court. Police officers are required to act reasonably based upon the totality of circumstances, not perfectly.In today's society, with the number of media outlets available, the public will often judge a particular use of force by a law enforcement officer based on 20/20 hindsight. Fortunately that is prohibited by the courts when determining objective reasonableness.Belief in Endless LawsuitsLaw enforcement agencies have a legitimate concern over liability issues that may arise from a use of force incident.A common misconception among police officers is that if they are involved in a use of force incident, they are likely to be sued successfully.Media Persecutiona. In a rush to gain viewership/readership, the media may inaccurately report facts about a use of force incident.Instructor Discussion Point: News media outlets often look to "use of force experts", legal attorneys, religious groups, activists and members of the community to get their subjective views regarding a particular use of force incident.Physiological ChangesThe officer needs to understand that certain physiological changes occur when faced with a threat. These changes are triggered by the sympathetic nervous system.The sympathetic nervous system initiates a defense mechanism referred to as the “fight or flight” response when you are stressed with the perception of death or serious bodily harm. This response prepares the body for a survival reaction. A third response known as “freezing” could occur once the body’s defense mechanism is activated. This response is important because it can affect the officer’s ability to react to the situation at hand.Once the sympathetic nervous system is triggered, the officer experiences negative effects in visual processing, motor skill performance, and cognitive processing. According to research conducted by Dr. Alexis Artwohl the following are physical responses to fear:Adopted from Deadly Force Encounters: What Cops Need to Know to Mentally and Physically Prepare for and Survive a Gunfight. (Artwohl, 1997)1) Pounding heart2) Muscle tension3) Trembling4) Rapid, shallow breathing5) Dizziness6) Nausea7) Gut wrenching knot8) Sweating9) Dry Mouth10) Goose Bumps11) Insensitive to pain12) Jumpy, easily startled13) Urge to urinate14) Urge to defecated. Other physical reactions:1) Loss of fine motor skills2) Loss of complex motor skills3) Loss of near vision4) Increase in gross motor skillsPerceptual Changes from an increase in the state of arousalINSTRUCTOR NOTE: Arousal is an objective state of physical changes that are measureable within the body. Examples are: elevated heart rate, increased blood pressure. It is important to define this for the students moving forward since many people often associated arousal as a sexual response.Tunnel vision (Selective Attention)- The loss of peripheral vision. Your field of vision may narrow to mere inches and you may lose depth perception and the ability to see what is behind the threat.Heightened visual clarity- While experiencing tunnel vision, you may have a clear picture of details you ordinarily might not notice or remember.Hearing distortionsThe most common hearing distortion is diminished sound, which may include a total loss of hearing, to muffled and distant. You may not hear shots being fired, people yelling at you or sirens coming your way.Time distortionThings may seem to slow down (slow motion) or speed up. An officer can experience both types of time distortion during the same incident.Instructor Note: You can do a simple experiment here to show how people perceive time differently. Split the class in half. Have one group close their eyes and hold their hand up when they think 30 seconds has passed. Make sure to warn them not to try and count seconds (one one thousand, two one thousand, etc.). Use a stop watch, or timer to denote when 30 seconds has passed. Have the second group watch the first group and note the disparity between the first hand up and the last hand up. Have the second group do the same test.Discuss the difference in time perception in the classroom, when no one is trying to hurt, or kill them and how that would be affected if someone was threatening them.Cognitive/Behavioral ChangesAutomatic behavior- Most participants in a traumatic event give little or no thought to their behavior? they just instinctively do what their experience has programmed them to do. This is why officers are told "you will do what you train to do, so trust your training."Col. Dave Grossman (ret.) makes the point “You don’t rise to the occasion, you sink to the lowest level of your training.” This is why it’s so important that you pay attention in training and participate with an active thought process of improving yourself constantly.VIDEO: This video is from Detroit. Watch the officer’s action, particularly when he returns to the front door of his car and retrieves his hat in the middle of this incident. What level of training and/or negative reinforcement has he had that would warrant getting prioritizing getting his hat in the middle of a felony stop?Memory gaps/distortionsIt’s normal when you are involved in a force encounter to not remember parts of what happened and parts of what you did. Memories of high threat situations are often like a series of snapshots, some vivid, some blurry, some distorted, and some even missing.Intrusive thoughtsSometimes you may have intrusive thoughts that may not be immediately relevant to your current situation. You might think of your family, some future event, or a previous event that reminds you of the present one.Learning Objective # 3: IDENTIFY METHODS OF OVERCOMING UNNECESSARY HESITATION IN USE OF FORCE APPLICATIONSOfficers must understand that the use of force in law enforcement is an offensive act. In force utilization, the officer is required to take action to stop or control a subject’s action or noncompliance. This action entails employing an offensive tactic to gain control.It is critical to be proactive and react to the threat of violence and not the actual violence itself. The only way to do this effectively is to be on the action side of an incident and not on the reaction side.The law recognizes the fundamental principle of “if an officer is responding to an actual assault, there has been an unnecessary delay in that response.”Mental preparationLaw enforcement officers can develop a winning mindset through a continual developmental process of interrelated activities, concepts, and principles. This continual process consists of:1) Understanding of the law2) Understanding your agency policy and its relationship to the Constitutional standard.3) Belief in Mission "Commitment to the law enforcement profession"4) Reality based training (dynamic and interactive)5) Training with imagination and emotion6) Have a commitment to family and friends7) Physical fitness8) Officer's personal appearanceLearning Objective # 5: IDENTIFY HUMAN PERFORMANCE FACTORS THAT IMPACT USE OF FORCE RESPONSESHuman Performance FactorsThe foundation for all use of force decisions is the law. As previously discussed in the legal block, “what” an officer is permitted do in a use of force encounter is based upon the totality of circumstances known to the officer at the moment force was used.The human performance block of training is designed to look at “how” officers use force. As the U.S. Supreme Court stated in Graham v. Connor (1989), police officers are often forced to make “split second judgments in circumstances that are tense, uncertain, and rapidly evolving.” It is these specific circumstances we will explore in this lesson.We will attempt to identify the most common reactions officers’ have to being involved in use of force encounters and where possible, attempt to mitigate some of the negative responses through training. The first step is to identify what happens to an officer’s mind and body during a critical incident.The Survival Scores Research (SSRP) (Meyerhoff, Norris et al., 2004? Wollert, 2008) conducted at FLETC indicates that stress plays a major factor in one’s ability to react. During stress, physiological factors (breathing, blood pressure, and heart rate) increase and the body shifts its resources to survival functions. Our focus becomes seriously narrowed, and decision making skills rapidly deteriorate. Our instinctive behavior for survival overtakes us and we may fail to process information needed to make cognizant decisions which may cause an officer to react in unexpected ways to the situation.The Mind: Understanding and Harnessing its Power (Willis, 2010)Most people will acknowledge the strong connection between the mind and the body. However, because the mind is an intangible, (it does not have mass and cannot be recorded using any medical means), people struggle with the question “What is the mind and how does it work?”To answer this question we turn to the world of hypnosis and the Mind Model developed by Gerald Kein of Omni Hypnosis. Kein developed this model to assist clients and fellow hypnotists to understand the mind and how it relates to healing. This model provides an excellent framework for law enforcement officers and trainers to work from.There are two main parts to the mind, the conscious and the subconscious. Both parts perceive the same information, but process it in entirely different ways.The Conscious Mind is the rational, analytical part of the mind and the home to will power and short term memory. Because the conscious mind always rationalizes and analyzes incoming information, the conscious mind is slow compared to the subconscious mind.The conscious mind is also limited in the amount of information it can focus on at any one time. We are 100% aware, at all times, of everything that is going on in the conscious mind. As a result this is the part of the mind where we often focus our attention in training. When learning any new skill such as firearms, you tend to focus on the specific elements of the task. For example, in firearms training we tend to focus on the stance, breathing, grip, the draw, aiming, focus on front sight, shot placement. After shooting, instructors look at shot placement and discuss where the rounds are ….The Subconscious Mind is the real boss. This part of the mind communicates through feelings and emotions. We talk about intuition or our sixth sense, and often describe them as a gut feeling, the hair standing up on the back of our neck, or our ‘spidey’ senses tingling. Beyond that we often struggle with explaining exactly these phenomena.Intuition (that "sixth sense" feeling) is the subconscious mind processing incoming data and communicating to us that something is not right. This processing happens (at hyper speed) before we have a conscious awareness of the impending danger.Those who become victims often ignore or suppress these messages from the subconscious mind. In his book ‘The Gift of Fear’ Gavin DeBeker describes these messages as survival signals and addresses the importance of responding to those signals.The subconscious is the part of our mind responsible for long term memory. Many behavioral scientists believe that everything that happens to us throughout our lifetime is stored and recorded in the subconscious mind.Habits are an important part of the subconscious mind. Many of the responses we refer to as instinctive or innate are actually habitual responses developed as a result of experiences in our life. These behaviors are often developed during the early years of our life as a result of events that at the time, had some emotional attachment. The thought processes carried out in the subconscious are done below the level of conscious awareness and therefore are often a mystery to us.The subconscious mind is also the part of the mind tasked with self-preservation. Its job is to protect us from threats whether real or imagined. That threat might come from the monster in the closet of a young child or from the career criminal who is trying to kill a law enforcement officer during a traffic stop to keep from going back to prison.The important aspect for trainers and officers alike is to understand that the subconscious is the BOSS? it runs the show. The way the subconscious mind is programmed will determine how an officer reacts in a "tense, uncertain, and rapidly evolving" situation.Remember the adage 'Train the way you want to fight, because you will fight the way you train.' If we truly want to train to WIN we need to ensure that our training program includes proper programming of the subconscious mind.Perception and Its Role in the Violent Encounter (FBI, 2006)The following is a discussion of several assumptions that stem from a now discredited theory that human’s process information in the same way that a video camera captures information.Over the past few decades, cognitive scientists have gained a better understanding of how perception, storage, and retrieval of information occur in the brain. They have studied not only the global aspects of perception, but also specific areas of the brain that contribute to the perceptual process.This section explores the ways in which officers and offenders process information during an encounter and in particular, how their perceptions may or may not differ. It is not an exhaustive review of the cognitive and emotional aspects of perception. Rather, its purpose is:To give an overview of a current theory about the way in which human beings perceive their environment.To explain how the perceptions of the officer and the offender during an encounter may have affected the ways in which both acted.Mistaken Theory: The Brain as a Video CameraOnly recently have researchers dispelled the theory that the brain works like a video camera. That theory generated the following mistaken assumptions:Mistaken Assumption #1: Everyone sees what really occurs. When people reflect on their own experiences, they quickly see how erroneous this assumption is. It takes nothing more than attending a sports event. The referee throws the penalty flag. As quickly as it hits the ground, spectator opinions of what really happened during the controversial call fill the air.With equal certainty, each side defends their position. It is very clear to each person what happened in spite of the fact that these explanations contradict each other. It could not have occurred the exact way each person recalls: either the penalty took place or it didn't. All spectators believe that they saw and know what happened. However, not until viewing the instant replay in slow motion and from multiple angles can we potentially reveal the true events that took place.Mistaken Assumption #2: Everyone sees everything that occurs. If this were true, it would not matter where in relation to an incident a witness was standing or recorded all stimuli as does a video camera, then a person would need only to recall the specific information.Research experiments, as well as personal experiences, show that the position (standing or seated) of witnesses will affect the quality, quantity, and accuracy of their perceptions. Something as simple and yet as dramatic as depth perception is affected greatly by a person's location in reference to the incident. For example, the perception of how quickly an object was moving oftentimes depends on the viewer's position. Photo: Discuss the different camera angles represented in the photo. Talk to the students about how this can also affect how video camera and witness viewing angle can affect their perception of an event."Looming" Looming is a term to describe how looking at oncoming traffic from various angles will result in seeing the vehicles appear to move faster or slower depending on the angle of view, even though they are moving at the same speed.In other words, the effect of Looming occurs when an object approaches in a direct line to the viewer. The image grows symmetrically and exponentially. The closer the object gets, the object grows exponentially bigger. This expansion rate “explodes” at short distances. This is why you don’t get in front of moving vehicles.When the image closes by ? the image doubles in size. Reduce distance by ? again, the image size doubles in ? the time.Looming does not occur if you’re perpendicular to the object.Different speeds and proximity may be reported. This is why a person standing in front of a speeding car will report the car moving much faster than someone seeing the same car from the side.Important things to remember about looming. People don’t account for their own movement when perceiving motion or distance of an object. People are generally inaccurate judging distances. Your ambient vision will be affected, combined with shallow angles of approach and speed of the object.Mistaken Assumption #3: Everyone processes incoming information the same way. One of the investigators in the violent encounters study offered a story to exemplify how this assumption is inaccurate.During his college years, he and a friend decided to play a set of tennis and then go into town to do some shopping. At the prearranged time and place, they met. One was dressed for tennis, the other for shopping. Each “knew” they had decided to do both: play tennis and shop. However, they “recalled” the order of those events quite differently.Mistaken Assumption #4: Everyone remembers exactly what occurred during an incident. There are cases where an officer involved in a shooting recalled that he had fired only two shots when in fact he had fired six. Even after he saw the evidence of six spent cartridges in his weapon, he still was certain that he had fired it only twice.Mistaken Assumption #5: Memories stay the same, maintain accuracy, and remain consistent over time. During the 1970s, journaling was very popular. Many individuals recorded events that occurred and various reactions they experienced during them. Upon reading those journal entries years later, many people are surprised at their recorded entries and reactions. Their current recollection of these circumstances sometimes proves quite different from what they wrote two or three decades earlier.Mistaken Assumption #6: Because people believe their memories are recorded like a video camera, they can replay those experiences with accuracy and in detail.We now know this is not the case. Many people will not believe until they are shown clear, and convincing evidence, to the contrary. And in some cases, even then, they may not believe it.How the Brain Really WorksThis section introduces cognitive and biological scientists’ current understanding of the way in which the brain processes information. The first principle for understanding how perception occurs is that the brain processes events and various stimuli in the environment, not merely records them.This process operates in a slightly different way for each person, and law enforcement officers often observe the effects of this difference.When an incident occurs on a busy street, it is common for officers to separate witnesses and to interview each one individually. Routinely, each witness’s rendition of the occurrence could vary. Are they lying? In most instances, the answer is no.Each person perceived the incident somewhat uniquely and then processed and recalled that information in different ways, thus rendering contrasting accounts.How does this various processing of information occur? Why do three people present at the same event describe it differently? The answers lie in combining three components: biology, environment, and psychology.Biological AspectsCurrently, cognitive scientists consider that the way the brain processes material can best be understood as a multitasked operation.The brain processes all incoming stimuli, assigning certain responsibilities to its various parts. Each of our senses (sight, smell, taste, touch, hearing) contribute to sending an estimated 1 billion stimuli to the brain every second. Of these multiple stimuli, only about 100 are sent on to be processed.For example, when you hear the word apple, what do you think about and what image comes to mind? Ask several people to respond to the word apple and you will quickly hear a variety of answers. Some will say, "red", "juicy", or "grandma's apple pie." Others will offer "yellow" or "tree". Why so many different first responses?No single cell in the brain is exclusively dedicated for collecting all apple related data. So, how does the image of an apple become displayed in the mind? Perception and memory are segmented and stored in various parts of the brain. Color, size, shape, taste, and texture are all experienced and stored in different parts and areas of the brain.When people hear the word apple, they call upon their own individual experiences with apples, and based on these experiences, their personal image of an apple comes to mindThe mental exercise of filing in the blank or sentence completion also can demonstrate this constructive aspect of the brain. When presented with the sentences "Men are like ______" and "Women are like _______", individuals draw from their own vast experiences and associate the missing information with an answer consistent with these experiences.Effects of Environment and PsychologyScientists currently believe that the brain constructs memories by linking together pieces of information.An example of this process involves what happens when people think about an apple. They associate this image with some of their experiences, all equally idiosyncratic. When asked to articulate what they are thinking, some people may discuss a recent grocery shopping experience? some may relate a particularly fond memory of a teacher as far back as elementary school? and some may speak of a time in childhood when they went to an orchard and picked apples.Some perceptions and memories are the result of or are influenced by various related pieces or bits of information, such as size, shape, color, and texture, coming together in the brain at a point in time.Memory especially is affected by past similar occurrences and can be looked at as a chain made up of links associated with one another. When there is a critical mass of such information, one link attaches to a related link and these attach to yet other links, ultimately forming a memory chain.One person might say, “The word apple makes me think of growing up in a small town in Pennsylvania, which leads me to think about my summers when we were out of school. One of our chores was to pick apples from the trees on our property. These apples were used to make cider, dumplings, and pies. The pies were most enjoyable, especially with the cinnamon that flavored them. But, cinnamon was great in the winter, too. We would put it in our warm apple cider after coming in from sledding.” And, the story goes on from there.That same initial image, however, could lead another person in quite a different direction.People construct memory links based on their particular experiences, biases, and expectations. They retrieve memories by associating a memory segment to another closely related one. For example, a witness might say, “The man I saw was tall, about 6 feet tall. I knew this because he walked by my girlfriend, who is only 5 feet tall. The suspect looked a foot taller than my girlfriend. I guess that’s what made me focus on his hair. His head became so prominent when he walked by my girlfriend. His hair was the same color as my girlfriend’s, dirty blond, but hers is short and straight. His was very curly and long, at least over his collar. Oh, and the collar was white? it really stood out on the blue shirt he was wearing.” Upon examination, the statement quoted above demonstrates that one piece or bit of information led the witness to recall another associated piece of information.Physiology and Its Effect on PerformancePhysiological conditions can affect the way the brain processes information. High arousal produces intense and specific physiological reactions. Physiological effects of acute stress include:Increased heart rateIncrease in respirationIncrease in blood pressure until catastrophic failureParasympathetic overrideDry mouthMuscle tensionTremblingNauseaInsensitivity to painJumpySweatingUrge to urinate/defecateTrouble speakingThe effects of the increased levels are different for acute stress and physical stress. The levels can change rapidly. These are also objectively measureable results. This means they can be measured, such as heart rate, and recorded.Another factor influencing an officers’ performance is their anxiety level. Anxiety is defined as the emotional or cognitive impact of arousal. Nervousness, tension, distress or uneasiness of mind caused by fear or danger or misfortune. These are subjective and will be experienced differently between officers, especially if their perception of the incident is different.VIDEO: This video is of an Oklahoma City, OK police officer who responded to a male subject who had been involved in a number of incidents through the day, including a suspected car jacking. He got onto a bus and was causing problems, as seen in the video. and refer back to this video, the effects of stress, arousal, and anxiety in this case. Factors that may influence an officer's arousal level may include:Intent behind the threat (Is he going to kill me?)Perceived risk from the threat (Am I going to Die?)Time available to respondConfidence in their skill setExperience level with the threatFatigueTypically, if a situation is perceived as more threatening by an officer, the greater arousal level they may experience. Additionally, if an officer feels the demands of the situation exceed their capabilities they may experience greater arousal and anxiety.In these situations, the brain reduces its functioning to one purpose: preservation. Several specific and intense physiological reactions typically take place during moments of self-preservation. People who face life-threatening events are bombarded with stimuli from all sides. By focusing on preservation, the brain directs all of its forces to those activities needed to survive.Many brain functions that are not necessary for immediate survival become less active, and those areas that are needed to promote survival become dominant. This includes the body’s blood flow during conditions of extreme physical or emotional shock. During life-threatening situations, the body shunts blood to the brain and heart, the two most important organs for survival. This process results in many of the seemingly odd and exaggerated experiences officers have during use of force situations, namely auditory exclusion, time distortion, and tunnel vision.Each of these sensory experiences can be very adaptive, albeit confusing both to the officer experiencing it and to those who later hear of it from the officer. For those listeners who have had similar reactions during highly dangerous circumstances, they respond with, “I know just exactly what you’re talking about.”Those listeners who have not experienced similar situations or otherwise lack an understanding of such reactions under stress, may doubt the officer’s truthfulness or judgment.Perceptual DistortionsWhy do perceptual distortions take place, and why are they biologically adaptive? Some officers related that when gunfire erupted during a violent encounter, they heard only popping sounds—not at all similar to sounds they had heard on the firing range or even while hunting.Others noted that they did not hear police radio transmissions or even the raised voices of other officers during the encounter. In these cases, their brains were attempting to reduce the amounts of what are perceived as distracting stimuli by filtering out as much noise as possible to allow the officers to focus intensely and almost exclusively on the perceived threat.During an extreme situation, time often appears to slow down. What took only 3 to 5 seconds to occur may seem to the officer involved as having taken 10 to 15 minutes. It is as if the brain is putting the brakes on, trying to slow down what is happening. Overwhelmed by the vast amounts of information coming in, the brain slows its processing down in an attempt to collect information, to rapidly make sense out of the material, and to control what is happening.During such occasions, some officers may see movements of people and objects in slow motion. One officer stated that he could actually see the ejected shell casings tumble from his pistol as he fired and could read the words on the bottom of them as they slowly passed in front of him.Below are perceptual and memory dissociations reported in a survey of 157 officers, from multiple agencies, involved in shootings (Artwohl, 2002):Diminished sound 84%Tunnel vision 79%Responding on "automatic pilot" 74%Heightened visual clarity 71%Slow motion time 62%Memory loss for part of the event 52%Dissociation: sense of detachment or unreality 39%Intrusive/ distracting thoughts 26%Memory distortion 21%Intensified sounds 16%Fast motion time 17%Temporary paralysis 07%Perceptual and memory dissociations have immense implications for law enforcement? they may affect officers’ perceptions for the purpose of future testimony? In that tense, uncertain, rapidly evolving event that the court talks about, the specific focus of the law enforcement officer will dictate what we can clearly see, react to, and report on.Shifts in attention lead to potential issues reacting effectively and memory recall and may be responsible, in part, for whether officers avoid harm, sustain serious injuries, or even die during an emergency response.It also is very important to recognize that not all officers will experience the same sensory perceptions or distortions as other officers on the same scene.The degree of emotional intensity each officer experiences during an encounter will vary as well. These variations in reaction, perception, and recall should not be considered in and of themselves as pathological, unnatural, or attempts by officers at distorting what actually occurred.AttentionWhen discussing attention it is important to understand that there are two types of attention? Global Attention and Selective Attention. Global Attention is vigilance (being generally aware of your surrounding "situational awareness"). Selective Attention is focusing on a particular aspect of/in your environment. Attention is limited? we can only attend to one thing at a time. We also need to understand that attention is selective? we can concentrate on only one thing or another and this requires effort.Video: Play the video of the reporter watching the snake. He does not notice the lizard that is right in front of him, that eventually jumps on him. Discuss his reaction with the students. What implications can this have when you are focused on one high stress event and something unexpected happens to you?Next Slide- Play the videos on Selective Attention. These videos will demonstrate and further explain this concept. Play the Selective Attention video first. Make sure the students follow the directions in the video. Afterward, discuss what they missed seeing. Then play the Selective Attention Explained video. This will further explain this concept. Remind students that when they hear instructors using the term “Tunnel Vision” what they are really experiencing is Selective Attention. Inattentional BlindnessInattention to cues during dynamic events could result in a failure to accurately interpret patterns and implications of the behavior leading to ineffective decisions and poor performance. This error of perception, a lack of attention to an unexpected object, goes by the scientific name "inattentional blindness". Inattentional Blindness also known as perceptual blindness, is when a person fails to notice some stimulus that is in plain sight. When people devote their attention to a particular area or aspect of their visual world, they tend not to notice unexpected objects, even when those unexpected objects are salient, potentially important, and appear right where they are looking (Simons, 2000).Videos- Play the two videos on inattentional blindness. Discuss how you can be focused on one thing, but miss other things that would seemingly be obvious, but are missed. Remind the students that even in a sterile setting, such as the classroom, they can miss things, how much more likely are they to miss things under the stress of a life and death confrontation.Replay the Whodunnit video. This time, have the students watch the first half of the video from the perspective of a body worn camera. Then watch the second half from the perspective of a stationary camera, such as an in-car camera, or surveillance camera. Discuss the impact on what an office can see, or report, on any particular incident.Real World ImplicationsThese vision effects apply equally in all cases. It affects witnesses, suspects, and officers. What does this mean to you?It means you will fail to see subjects, or objects, even ones next to the threat, or someone behind the immediate threat. This is because if you focus intently on any one thing, it’s hard to focus on other things.Your eyes focus on a fixed point. They stop scanning. It requires effort to look around. Your pupils dilate and lose depth perception. As a result you can’t see behind the threat, even if you’re looking in the same line of sight as the subject behind the threat.You may lose the ability to focus on the front sight. When you get to firearms training you will learn how critical focusing on the front sight is. Additionally, you will lose the ability to accurately gauge distance. This is critical, especially if you’re using a less lethal weapon that has policy and manufacturer range limitations involving certain kinds of ammunition.This can impact you in an investigation. You might be asked questions about how far from the suspect you were. Chances are extremely high that you will be wrong in your estimation. The reality is, you are most likely not going to focus on the distance. You’re going to focus on the threat. As a result, you will have no idea what the real distance between you and the suspect was. Officers also frequently fail to account for their own movements. This is also going to impact your memory and ability to recall what the suspect was doing in relation to your own movements.Finally, when we compare what happens to your vision against what a body camera “sees,” you’ll notice there will be distinct differences. If we know your focal vision is going to dial down to about 1-3? of your total vision, what happens when that’s compared to a Pro Vision BodyCam field of view of 170??VISION EFFECTS“Looking takes place with the eyes but seeing takes place in the brain.” Derrick Bartlett, Snipercraft. Your eyes gather input, but your brain deciphers it. With all the effects of stress we’ve already discussed, now we’re going to talk more specifically about those effects, starting with your vision.Our eyes detect motion, light-dark-contrast, color, and surface features. Vision is our dominant sense, comprised of two elements:Eyes- which take in sensory inputBrain- which does the processing and interpreting of the information taken in by the eyes. As our dominant sense, approximately 70% of brain neurons sub-serve the visual system.The normal vision arc is approximately 200?. Within that vision arc, our eyes see better at some points than at others. For example, our best focal vision is the Fovea. The Fovea is specialized to detect objects and locations with clarity. This is about 1-3? of our vision.In dim light, the Fovea does not work and we have to rely on our Peripheral vision. As distance out from the Fovea increases, acuity decreases. Outside the center of gaze- out to 30?, is what is called the Para fovea. It is also referred to as Ambient vision.Ambient Vision is specialized to detect peripheral information, motion, and information in low light. Balance is also affected by this part of our vision.Your best vision is in that 1-3? portion of the vision arc. Under threat, that focus is selective based on what is happening to you. You become focused on the threat. Remember the effects this will have on you.Also, if your vision is narrowed to 1-3? of the total vision arc and you’re wearing a body camera that captures a 170? field of view, what does this mean to you?INSTRUCTOR NOTE: Have the students extend their arm and hold up their thumb. Have them look at something with the thumb blocking their view. This is an approximation of what 1-3? of their vision would be limited to under high stress. Now talk with them about what kinds of things they see with their peripheral vision. Link back to Selective Attention and Innatentional Blindness.NASA Vision ArcThis picture is of what NASA calls the Binocular Vison Arc. We see at approximately 200 degrees, with our normal ambient vision. Vision Under ThreatThis series is an approximation of the impacts on vision and the vison arc. It shows that under stress, you “see” through a very small part of that vison arc. What implications does that have?Vision dynamics- How we see thingsOur vision is made up of several interrelated factors. They combine to create our vision. But what is important to know, is that vision does not work like a video. It is not a smooth, complete picture of what is actually happening.Here are the basic parts and terminology of vision. Remember these elements combine to create the “seeing” that Derrick Bartlett spoke of.Fixations- This is the basic element of looking, lasting 0.2-0.35 seconds in duration. Saccades- These are brief eye movements consisting of separate fixations. Because the eyes are in constant movement, vision is suppressed during rapid saccades. Pursuit tracking- A stable gaze on a moving object.Transitions- These are a fixation to fixation movement. Your brain cannot track two things at the same timeSchema- Because of these brief interruptions in vision, the brain fills in the gaps by creating a brain blueprint. This is a cognitive shortcut. For example, when you walked into this room, your brain did not have to process each chair, the desks, the walls, ceiling, paint color, lighting, and more. Your brain had a “picture” of these items already and it did not need to spend time processing each of these items individually. This is a mental shortcut. Schema eliminates the need to reinterpret common situations.The problem is that the observer is less likely to notice and object that does not belong in the “script.” It is in the wrong place, at the wrong time.INSTRUCTOR NOTE: Have the students take out a blank piece of paper. They are going to have ten seconds to copy down the diagrams on slide 290. YOU MUST DOUBLE CLICK ON SLIDE 290 TO ACTIVATE THE TIMER. Directions are on slide 289. Once they complete the diagram, enter into the discussion on slide 291. Looking- A transition to an object plus a fixation equals a glance. Because of this, it’s possible to “look” but not “see” an object. Your brain is filling in the gaps. A shift in gaze is caused by a shift in your attention.Seeing- A result of fixations, pursuit tracking, saccades, and fixations. You don’t “see” it all- it’s an illusion.Ambient Vision ExperimentWe’ve talked about how ambient vision is specialized to detect peripheral information, motion, and information in low light. Now we are going test that a little.INSTRUCTOR NOTE: After bringing slide 295 up, give students the following directions:Have them focus on the letter Y. Then see how far to the left they can see without moving their eyes or head. Most of the students should be able to see (from right to left) between the number 3 and the number 8. This will all vary on how well they can see, where they are sitting in the room, and who is cheating.This is a good time to talk to them about how people observing the same event will be affected by their viewing angle of the event.Focal Vision ExperimentNow we are going to conduct another experiment using your focal and peripheral vision. Remember, your focal vision is specialized to detect objects and locations with full acuity.INSTRUCTOR NOTE: Tell the students to focus on the Y again. This time, take an inert training handgun (without showing it to the students) and go to one corner of the room so you are toward the back of the students. Tell the students to raise their hand when they can clearly identify what you are holding in your hand. Make sure the training weapon is pointed in a safe direction. Model the Four Firearms Safety Rules here.After you have returned to the front of the class, move to the opposite corner of the room from where you started. You are going to repeat the movements. However, this time, substitute a cell phone, or other object and have the students raise their hands when they can clearly identify the object. Hide the object before you get to the front of the class and ask them what it was.Enter into a discussion on how long it took them to identify what you were holding.Once again, remind them that their perception of an event will be determined by many factors, including viewing angle.Recognition Primed Decision MakingAnother concept with serious implications to law enforcement officers is called Recognition Primed Decision Making (RPDM). RPDM asserts that decision makers can identify a reasonable good option as the first one they consider. Decision makers pick up cues and indicators that recognize patterns and based on these patterns a course of action is chosen.Video: Play the video from the Tom Hanks movie Sully. This will provide some perspective on RPDM and how often times you’ll select an option to a problem that might not be the “best” solution, but is one that sufficient and satisfies the need.OODA Loop ProcessAnother decision making process is something called the OODA Loop Process. This process was first described in the late 60s as a way for Air Force pilots to understand how they processed information and made decisions. OODA stands for Observe, Orient, Decide, Act. Each component of the process has specific functions. This is not a linear process. It is in constant motion. a) Observe- This is the beginning step in the process. You perceive something is happening. It is a stimulus. You have to “observe” something. The “something” is whatever it is that caused your attention to move toward the item, or action. The action could be a suspect drawing a weapon from his waist band, or other pre-assault indicators. b) Orient- Now that your attention has been drawn to something, your brain needs to figure out what it is. The brain will analyze what has been observed. Now you are starting to figure out what happened. You saw the action, now you will begin to understand the action.c) Decide- You have seen and analyzed the suspect’s action. Now you have to decide what to do about it. Dave Grossman, in his book On Killing, The Psychological Cost of Learning to Kill in War and Society, says there are one of four responses you’ll make at this point. You will either fight, flee, posture, or submit to the action. In law enforcement, we cannot submit (surrender). That leaves us with either to fight the suspect, flee from him, or posture. If he is attacking you- posture is no longer an option.That leaves you with fight, or flee. As you have seen, you do not have a duty to retreat. It may be a tactical decision, but likely, in the context we are talking about here, fight is your only option.So now that you’ve decided to fight back, your brain will now tell the muscles what to do.d) Act- Your muscles will receive their instructions from the brain. Muscle activation starts the Motor Movement process. You will start to move and take action. Action vs. Reaction- Based on the suspect’s actions, in response to your actions, each of you may have to reset your OODA Loop process and start all over again. This why action is faster than reaction. You have to take time to process what is happening in order to respond to it.The OODA Loop processing can take .50-.75 seconds. You can speed that process up by anticipating the suspect’s actions. However, that has a dangerous downside if you misinterpret the signals and assume the wrong thing. Combine this with the time it takes to physically draw your firearm from your holster, this time can take .90-1.50 seconds. This is based on times at the range when a student knows the buzzer is coming.What happens when you don’t know the threat is coming?Safety PrioritiesAccording to the 2018 Tactical Response and Operations Standard for Law Enforcement Agencies (TROS), published by the National Tactical Officers Association, the Safety Priorities are defined as:“A decision-making process which provides the framework for making tactically sound decisions, utilizing objective criteria based on an individual’s current or likely risk of suffering bodily injury or death and their direct ability to remove themselves from that danger. Those exposed to the greatest potential of injury with the least ability to escape the situation are placed at the top of the priorities, i.e. hostage is at grave danger of injury when held against their will and has little ability to control their situation. On the other end of the spectrum is the suspect, who had little threat of injury and absolute control over the situation. The safety priorities value all life and its sole intent is to assist law enforcement in making tactical decisions to assist in saving lives.”Using the Safety Priorities, an officer may have to take action in a critical incident before a SWAT team, or other officers, can be deployed. According to the NTOA, “Such decisions should be based on the totality of the circumstances and the safety priorities model (2018 TROS, pp. 16-17, 19, 45).” According to the NTOA, “When contemplating an action, remember to evaluate who would benefit or suffer most. These should be guiding factors (NTOA, The Tactical Edge, Summer 2018, pp. 10-11).”In your training prior to coming to POST, or your in-service training after you leave POST, you may hear agencies refer to the Priorities if Life. This is a similar concept, but suggests that the persons on that list have a ranked order. That’s not the case, which makes the term Safety Priorities more specific to how law enforcement works.a) Hostages- Hostages represent the highest risk of death, or serious injury, because they are not in control of the situation and cannot escape from it. b) Innocent Civilians- Although they are not at the same level of risk as a hostage, they may not have the ability to escape a dangerous situation. For example, they may be inside of a house, or apartment, where a barricaded subject, in a nearby location, is shooting. Although they are not hostages, they are not in a position to effect a safe escape and are at risk.c) Police Officers- Police officers go to the sound of gunfire. Although we do this, we are not throwing our lives away. We work in coordinated ways through tactical decision making, well-orchestrated training which reinforces proper use of tactics and effective equipment usage. By properly employing sound tactics, developed through proper training, supported by using the right equipment, police offices can maximize their efforts.c) Suspect’s Constitutional Rights- A suspect is in control of their actions and can submit to your authority at any point. When they fail to do so, they take the responsibility for what happens to them. Your responsibility is to act in a way that is objectively reasonable. A result of that objectively reasonable action may result in the death of the suspect. PROTECTING THE INNOCENTIn this series of videos coming up, officers are sent to a reported domestic violence where the wife has been reportedly raped and shot in the arm. The son is on location. In the videos, you’ll hear him shouting “That’s my mama.” The suspect male is armed with a handgun as he approaches the down woman. The officer finally shoots the suspect after several warnings and when the suspect grabs the woman. The officer fires 14 rounds, 11 in the first volley. The suspect can be seen manipulating the handgun before finally collapsing to the ground after 15 seconds have elapsed from the first shot fired.MAKING A DECISIONVIDEOS: Play the vidoes and discuss the Safety Priorities in conjunction with the officer’s actions, hesitation, possible outcomes and the time it took for the suspect to fall down. Our role in law enforcement is to protect people. By backing away, as the officer did, he placed the wife- an innocent civilian- in greater danger. Immediate action was warranted here, not withdrawing and leaving the woman exposed to an increased potential of death or serious physical injury.The first video is from the officer’s body worn camera. The second is from a civilian down the street. for your lifeWhen you are in a fight for your life, these priorities will obviously change. If you cannot survive the fight, you cannot help others, therefore your focus changes. Remember, there is a difference between how you work (Civilians, Police, Suspect’s Rights) versus how you survive in a life and death struggle. 1) Yourself- Again, if you don’t survive, then you cannot help others. Therefore you must prepare to win, decide to win, and act to win.2) Other police officers- If the situation has deteriorated to the point where multiple officers are being threatened, then it stands to reason the civilian population is under threat as well. So in this case, other officers must survive the fight to help the civilians.3) Innocent civilians4) Suspect’s Constitutional RightsThree question decision makingWhen you have time to deal with situations, you will want to filter a decision through the following three questions. Start by asking “Is what I am about to do…a) Legal? Does the action I am going to take comply with federal, state, or local laws?b) Ethical? Am I acting out of anger, lust, greed, or peer pressure? c) Within policy? Does policy cover what action I can take, how to take it, and when to take it? Your use of force will be addressed in a policy. Make sure you know it.TrainingSo, what’s the solution? There are several ways to program the subconscious for enhanced performance under stress, but developing a winning mind is a great place to start. We must train to win. So, what’s your role in training?In his work “Beyond Survival: Training Officers to Win”, Brian Willis advanced the following ideas about winning.Every year there are hundreds officers who are victims of violent assaults which they survive, but result in these officers being seriously injured, and in some cases permanently disabled. We have to respect and admire these officers for surviving these horrendous encounters? however, we are left to wonder what the outcome could have been if they had been trained to win and not just survive? if they had been trained to be proactive rather than reactive.We must learn from the experiences of those officers and realize that the first step in this transition to Winning is accepting the reality that for many officers ‘Survival’ is completely defensive in nature.Unfortunately many people mistakenly believe that teaching officers to win is tantamount to training them to be paranoid, to over react, to respond excessively and to brutalize subjects. Nothing could be further from the truth.Winning takes many forms and can range from the use of effective communication skills to gain control of a subject to the use of a force option that could ultimately cost the life of that subject in the course of protecting the officer or someone else.Training to win is about learning to be calm, focused, in control and confident in any situation. It is about training to assess the situation and respond in a manner that is reasonable based on the totality of the circumstances. It is also about developing the verbal and nonverbal communication skills so your interactions with people are clear, concise and professional.Winning is about controlAn officer who is in control of themselves because they have a high degree of competence and confidence in their skills, tactics and knowledge will be more easily able to control subjects and situations. They use their professional presence as well conflict resolution and crisis intervention skills effectively.Winning is about understandingOfficers who have trained to win understand? the realities of action versus reaction? time and distance? and they understand when to disengage to create distance.Officers who have trained to win understand? when to act and take away time and options from their opponent? and that as law enforcement professionals they may ultimately take a life to save a life.Officers who have trained to win understand that the only acceptable goal in any confrontation is winning.Winning is about commitmentOfficers get killed and injured in the line of duty, not agencies. Therefore officers who train to win make a personal commitment to continually train their mind and body.Officers who train to win commit to train throughout their careers? to enhance their skills, knowledge, fitness and tactics. While others make excuses and abdicate the responsibility for training to their agency or organization, those who train to win accept the fact that there has never been, and never will be, a law enforcement agency killed or injured in a violent encounter.Winning is about offenseIn order to win officers need to be conditioned to act and think offensively rather than defensively. In a sporting event if a team only ever plays defense the best they can hope for is a tie, which still earns them a point in the league standings. On the street there are no ties, and a loss for a law enforcement officer can have tragic consequences.In sports the term ‘sudden death overtime’ creates tension and excitement for the viewing public? for law enforcement officers it can mean adding another name to the memorial walls.Officers with the winning mind treat every block as an offensive technique designed to attack and negate the assailant’s delivery system. These officers accept that every situation is winnable knowing that this is not the superman syndrome, but an acceptance that if they are in it, they will win it.Winning is about being a professionalFor many people the word ‘Predator’ conjures up very negative images. They tend to think of the seedy element of society who preys on the weak and the elderly or sexual predators. As a result, it is difficult for many law enforcement officers to understand that the ‘Predator Mentality’ plays an integral role in the Winning Mind.To assist in developing an understanding of the positive aspects of the predator mentality let us look to the animal kingdom. When asked to list the positive traits of predatory animals, those traits and characteristics that allow them to be successful, officers list such qualities as:Physical quickness, speed, strength and powerMental calmness, focus, control and confidenceControlled aggressionEnvironmental awareness including the use of concealment, cover and movementUnderstanding one’s opponentCommitment to the goal/missionTaking a step back and examining the list, it becomes apparent that these are the same qualities trainers and organizations work to instill in law enforcement officers during officer safety, firearms, and control tactics training.The same traits that make the difference between success and failure, life and death in the animal world can also make the difference between being the victor or the victim for law enforcement professionals involved in violent encounters.As an officer, you may have numerous obstacles to overcome in order to develop this attitude. You may have never been in a real fight or played contact sports. As a result, you may have no idea what it is like to get punched or kicked, to have someone threaten you or to experience any form of interpersonal human aggression. You may have been taught since you were a small child that it is wrong to fight, to always play fair and were told at home and at church that it is wrong to harm another Human.Officers must understand that they will be exposed to elements of society raised in a culture of violence where they were taught that you must fight to get what you want and protect what is yours. They must accept that there are those people on the street and in the prisons who are prepared to hurt or kill a police or corrections officer to accomplish a goal or make a point.Building the files in the subconscious brain requires us to consider? the frequency of our training? the type of training we are doing? and the intensity of our training. How often you are training and what type of training are you doing? Is it reality based and winnable or is it an exercise in futility?Are you training to “qualify” or are you training to competency and confidence?If you are going to develop patterns in the subconscious mind, the place where all of our experience is stored? to build those files, you need to train with imagination and emotion. You need to “put a face” on your training. One of the most powerful tools available to do this, to help program the subconscious mind for success, is to use Guided Imagery.Video- The video shows Blue Angels pilots as they practice their flight by using guided imagery. Talk to the students about how they can practice this as well. Talk to them about “What if” thinking- meaning if what if suspect does this? How do I respond? This thinking can help them mentally and emotionally prepare for given situations.Willis provides further insight in “The Key to Winning: Decide What’s Important Now?”W.I.N. is a simple but powerful acronym that comes from the famous Notre Dame football coach Lou Holtz. It stands for “What’s Important Now?”Holtz instructed his players to ask themselves this question 35 times a day. He wanted them to think about it when they awakened, while they were in class, study hall, the weight room, the practice field, standing on the sidelines during a game and while on the playing field at a game. Holtz wanted his players to be able to learn to focus on what mattered most at any given time.As law enforcement professionals, we should ask ourselves this same question 35 times a day. In doing so, we are forced to focus on what is important at a particular moment in time, enabling us to prioritize our mission, the threats and our actions. If we have the correct mindset, we will focus on what we need to do to win that particular confrontation. For example:As law enforcement trainers, we should ask ourselves this question because it helps us focus on what is important in our instruction, which areas of training need to be addressed and which have the highest priority. This focus is required for us to truly prepare our officers to be winners and warriors. Let us explore areas where we need to take a serious look at ‘What’s Important Now?’What’s Important Now?What am I going on? (Severity of the Crime)Is there the possibility of immediate threats when I arrive? (Immediacy of the threat)Is there the potential for resistance from those on scene? (Actively resisting)Will someone try to run when I arrive at the scene? (Evasion/flight)What's Important Now after force has been used?Is the threat actually stopped?If I've used my gun, is it in working condition? (in battery, ammunition, etc.)Are there additional threats?Am I in the best tactical position?Communication/Backup?Are there injuries to you or the suspect?Close Quarters Violent EncountersAnother area of concern is a close quarters, violent encounter where the officer faces an attacker who is committed to killing him. These kinds of encounters may take many forms such as edged weapons confrontations, officer hostage situations and good ole' fashioned gunfights.Violent encounters can happen in the confines of narrow hallways and small rooms. What is important at that moment in time is for the officer to use overwhelming violence to destroy the attacker. The officer must be the winner. This may mean:Violently attacking the subject’s eyes, making it impossible for him to see and reducing his determination to fight?Crushing the subject’s throat with a forearm, elbow or fist, impairing his ability to breatheUsing a utility or rescue knife to stab the attacker, hopefully stopping the threatFiring the officer’s handgun at the subject’s head until the threat is stopped.If we accept that ferocity of action and overwhelming violence is ‘What’s Important Now’ for the officer to win and go home to family, and then we must ask ourselves, “Are we mentally and physically prepared to accomplish this?”Have You Been Shot?The first indication you might have that you are in a gunfight, could be when you get shot. Getting shot doesn’t mean you did anything wrong. Getting shot doesn't mean you are going to die. If you are dead you don’t know it. If you have been shot and are alive to realize you are wounded, ‘what’s important now’ is to get focused, get aggressive and win the fight. Once that is accomplished, move to a better tactical position, get help on the way and assess and treat your wounds.To ingrain a proper response into the subconscious mind you must train with imagination and emotion. You must imagine being shot and doing whatever is necessary to win the confrontation.An officer must have the same mindset when dealing with any violent encounter. You must condition yourself to continue to fight and win regardless of the nature of any injury you may have sustained.The challenge to you is to continue to ask ‘What’s Important Now?’ What is important is that you set aside your ego, take a step back, examine how you train yourself to prepare for and win violent encounters.SUMMARY OF MAIN IDEAS1. Learning Objective # 1: Articulate the use of force in accordance with the constitutional standard.2. Learning Objective # 2: Identify factors that may cause unnecessary hesitation when an officer uses force3. Learning Objective # 3: Identify methods of overcoming unnecessary hesitation in use of force applications4. Learning Objective # 4: Identify the fundamentals of documenting a use of force incident (Covered in the Report Writing Sections).5. Learning Objective # 5: Identify human performance factors that impact use of force responses6. Learning Objective # 6: Identify critical elements of post incident procedures (Covered at the end of the Academy).7. Learning Objective # 7: Evaluate students’ performance in a use of force exercise (Covered during Scenario Training).REVIEW OF TEACHING POINTS1. “Objective reasonableness” is the Fourth Amendment standard for all use of force applications.”2. The legal standards for all use of force is outlined in the Supreme Court case of Graham v. Connor, 490 U.S. 386 (1989).3. “Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to affect it.”4. The legal standard of use of force reasonableness does not require officers to select the least intrusive alternative only a reasonable one.5. The authority to use force is an enormous responsibility and must be entirely linked to personal commitment. When an officer uses force, it is his or her decision alone, and that officer must be mentally prepared to act appropriately within the guidelines of what is “objectively reasonable.”6. It is critical for the officer to be proactive and react to the threat of violence and not the actual violence itself. The only way to do this effectively is to be on the action side of an incident and not on the reaction side.7. When force utilization is applied immediately and without hesitation, that force application results in fewer injuries to both the officer (s) and offenders because the incident is quickly ended and control is established.8. When officers are confident that using force is justified in a given situation, the officer is mentally prepared to win and act with competency.9. Mental preparation keeps the officer in tune with the surrounding environment and all actions that occur within. Mental preparation ultimately builds confidence in the officer which in turn builds competency. If the officer can control fear, he or she will have control over the main triggers that activate the sympathetic nervous system and cause the officer to experience negative effects.10. Throughout this text, the officer has learned that the utilization of force is inherent in everything they do. This premise is understood by the courts and provided for by law.The reasonable use of force by an officer to accomplish his or her duties is expected, acceptable, and permissible11. By combining mental preparation, continuous education, and experience, each officer will continue to make reasonable decisions and be effective in the use of force.UnderstandingStudents will be tested with written examinations and documented performance evaluations during reality based training scenarios.ClosureProvide students with an opportunity to ask questions and discuss the concepts and principles discussed in this training. ................
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