Police & Suicide
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intervention and the suicidal subject: Suicide facts and
fictions Many citizens, law enforcement professionals and even mental health clinicians are misinformed about the nature of suicide. Whether you’re the first officer on the scene or a member of a specialized crisis response team, this article will give you some basic background and insight into the suicidal process.
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Crisis
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The following represent some of the more frequently misunderstood issues. Those who threaten suicide don’t really do it The number of suicidal threats is far greater than the number of suicidal acts and most such threats are not followed by an actual suicide. But attempted or completed suicides are often preceded by one or more suicidal threats, so each threat has to be taken seriously. Most psychologists think of suicidal threats or gestures in clinically depressed subjects in much the same way as physicians consider chest pains in patients at risk for heart attack: most may be false alarms but, in both cases, if you miss the real one, the patient is dead. It is also true that many disturbed people use suicidal threats as an attention-seeking or manipulative ploy. But responding in a forthright way demonstrates both concern for the subject and the fact that there are real consequences (temporary involuntary commitment, a permanent mental health record, for example) for “playing games.” Therefore, all suicidal threats should be taken seriously. Discussing suicide will impel the person to do it Well-meaning friends, family members, first responders, and even some clinicians may avoid asking a subject about suicidal ideation for fear of “putting ideas in her head.” In fact, just the opposite is usually true. Most depressed persons have already thought of suicide, indeed, may be currently ruminating about it but reluctant to bring it up for fear of being seen as crazy or of having restrictive action taken. Yet most are actually relieved to have another person question them about their suicidal thoughts because it gives them the opportunity to discuss their fears and concerns. Many people express suicidal intentions or make suicidal gestures because they’re really hoping to be rescued. If someone has actually not been considering suicide, usually the only consequence of your raising the issue will the person’s disavowing it. But it is highly unlikely that an otherwise non-suicidal person is going to abruptly decide to kill themselves just because you brought up the subject. Better to have as much information as possible, rather than too little. Suicide is always an irrational act Sometimes it is and sometimes it isn’t. It is difficult for most people to relate to the excruciating mental pain that would drive a person to end his or her life, especially if, to our eyes, the situation “isn’t all that bad,” or the person seems to “have everything to live for.” But a clinically depressed person who is overwhelmed by despair and hopelessness may not possess the rational perspective we might have when confronted with a similar challenge. In the depressed state, negatives are magnified and positives are discounted. In many such cases, a crushing accumulation of adverse life events squeezes any hope for the future out of the person’s life, making the rationale for suicide seem crystal clear: if everything in life is pain and nothing is pleasure, and it’s never going to end, then what’s the point of going on? Always remember that psychological pain cannot be measured by a standard barometer – everybody’s pain is real to them. Suicide is always an impulsive act Sometimes it is – in which case there is hardly sufficient time to intervene because the person completes the act with little or no warning. In many other cases, however, the individual will express his or her suicidal ideation to someone: family member, friend, clergy, clinician, or 911 call taker. In such cases, the person is at least somewhat ambivalent about taking his or her own life and this leaves room for intervention. Individuals who die by suicide are mentally ill In most cases, suicide does not just occur in an emotional vacuum, but takes place in the context of a history of mood disturbances and erratic behavior. Indeed, a high proportion of suicide attempters have had at least some prior contact with the mental health and/or legal systems. While there need not be a psychiatric diagnosis per se, most suicidal individuals are clinically depressed or struggling with some form of persecutory delusion, perhaps a combination of the two. Knowing the subject’s history of mental illness is important mainly for predicting what kind of post-crisis life that person will be going back to, and thereby formulating an intervention strategy that realistically takes this variable into account. Suicide runs in families Mood disorders like depression and bipolar disorder usually have a genetic-familial component and suicide is an additional risk factor in these syndromes so, in that sense, suicide can be said to run in families. This does not mean, however, that someone with a family history of depression and suicide is predestined to take their own life – only that the risk is somewhat greater than in others without such a background. Again, as with other family medical risks, proper treatment can help many individuals “beat the odds” of their family history. Of course, during an actual suicidal crisis, the primary priority is to keep the individual alive right now so that he or she can be provided access to appropriate therapeutic services later. Once suicidal, always suicidal Again, partly true. As a general rule, a person who has attempted suicide once is at greater risk of attempting it again under conditions of stress that precipitate a depressive episode. Therefore, one important goal of any effective treatment is to give the person the coping skills necessary to reduce the frequency and intensity of these crises, and thereby make suicidality less of an automatic, reflexive choice for that individual. Once the suicidal crisis has passed or the person’s mood has improved, the danger is over It may be over for that moment, but without follow-up treatment, there is increased risk of future crises, as noted above. This highlights the need for follow-up treatment after the immediate crisis has been resolved. In my next article, I will look
closely at a hypothetical example in order to better
understand the type of interaction one might encounter
between the police intervener and the suicidal subject. 'Suicide by
cop' prevented by Calif. police, behavioral health team A collaboration Monday between Rialto police and the San Bernardino County Department of Behavioral Health helped de-escalate a situation where police say a man was threatening “suicide by cop.” Just before noon, officers were called to a home in the 300 block of East Huff Street by someone stating that a loved one, a 37-year-old man, had threatened to harm himself with a knife and had reportedly made comments that he wanted police to shoot him, according to a police statement.
Police use of force,
CEWs,
and the mentally ill
Persons who pose only a
threat to themselves should be treated with extreme
caution in regards to using physical
force Detective David Padilla, a crisis negotiator with the Inland Valley SWAT team, arrived at the home and tried to speak to the distraught man, officials said. After some time, Padilla requested the Triage Engagement Support Team — known as TEST — come to the location. The TEST team is made up of Rialto police officers and two behavioral health specialists who have been assigned to the department five days a week to assist with crisis situations. Padilla managed to convince the man to come outside of his home, where he was first detained and then given the chance to speak to a TEST specialist, officials said. After some time, the man reportedly
agreed to get professional help and was taken to Arrowhead
Regional Medical Center Behavioral Health Department. No one
was injured during the tense situation. How should
mental health issues be handled by police? On Oct. 10, at about 9:30 a.m., Christopher Whitmarsh walked out of a nursing home in Rockport, pulling an oxygen tank behind him. Whitmarsh, 49, a Gloucester native, was homeless and depressed, and his oxygen was running low. A registered nurse at the Den-Mar Health & Rehabilitation Center called 911, saying Whitmarsh had left the facility against the wishes of the staff and told her he “didn’t care if he died.” A Rockport police officer quickly found Whitmarsh walking toward town, and was soon joined by another officer. Despite a plea from the nurse at Den-Mar for police to take Whitmarsh to the hospital, the officers decided to let him go. Later that day, at about 3 p.m., Whitmarsh was shot and killed by a police officer in Beverly after Whitmarsh repeatedly rammed his SUV into two police cruisers and a car in which his wife was a passenger. Investigations by the Essex District Attorney’s Office and the Beverly Police Department concluded the shooting was justified because Officer April Clarizia reasonably believed that lives were in danger. But the details of Whitmarsh’s earlier encounter with police in Rockport raise questions about whether he should have ever made it to Beverly that day, and shed light on the difficult decisions facing police when dealing with mental health issues. Under state law, police officers have the authority to restrain a person if they believe that failure to hospitalize would create a “likelihood of serious harm by reason of mental illness.” A physician would then examine the person to determine whether he should be hospitalized for a three-day period. Rockport Police Chief John Horvath said his two officers, Colleen Daniels and Michael Anderson, saw “no overriding red flag” indicating Whitmarsh was a danger to himself or anyone else. “Had that been the case, they would’ve addressed it appropriately,” Horvath said. “They absolutely did the right thing.” The officers came to their conclusion despite statements from the registered nurse that she was concerned for Whitmarsh’s safety. According to the police report filed by Anderson, the nurse told him she wanted Whitmarsh to be “section 12’d,” a reference to the section of state law that allows for the involuntary hospitalization of a person who is considered likely to create “serious harm” due to mental illness. While Daniels waited with Whitmarsh, Anderson drove to the nearby nursing home to speak with the nurse in person. The nurse told Anderson that Whitmarsh told her he didn’t care if he died and didn’t care if his oxygen tank ran out. According to Anderson, the nurse called Whitmarsh’s doctor and left a message. “Her main concern was that he was homeless and had nowhere to go and she was worried he may run out of oxygen,” Anderson wrote. In response, Anderson told the nurse Whitmarsh did not make any comments to him or Daniels about harming himself “or anyone else.” Anderson told the nurse police called a taxi for Whitmarsh so he could get to his car in Beverly to retrieve his other oxygen tank. “She was satisfied with the outcome and I cleared from Den-Mar,” Anderson wrote. In her report, Daniels said Whitmarsh told her he wanted to leave Den-Mar and “didn’t care what they said,” but that he didn’t want to die. “Mr. Whitmarsh denied any suicidal thoughts or comments to myself and Officer Anderson and appeared to have a normal disposition,” Daniels wrote. “In my opinion, he was unsatisfied with his care and treatment at the Den-Mar Nursing Home and just wanted to leave.” Daniels said she offered to call an ambulance or to bring Whitmarsh back to Den-Mar, but he refused. She stayed with Whitmarsh until a taxi arrived, then assisted him and his oxygen tank into the cab. “I wished him the best and he left the area,” she wrote. Decisions such as the one that confronted Daniels and Anderson are “excruciatingly hard,” according to June Binney, the criminal justice program director for the Massachusetts chapter of the National Alliance on Mental Illness. Binney said all new police recruits in Massachusetts now receive 21/2 days of training on how to interact with people with mental illness. By June 2016, all municipal police departments in the state will have undergone a three-hour training program, she said. Some police departments, including Danvers, have formed partnerships with crisis workers to help officers respond to emergencies. Horvath, the Rockport police chief, said his department, including Daniels and Anderson, has received training in mental illness and suicide prevention, most recently in June. Binney said she could not comment specifically on Rockport police’s handling of Whitmarsh. But she said police need continued training on how to deal with mental health emergencies. “I wish these things were more
black and white. They’re very complex,” she said.
“The best we can do is to support police through
education and hope that creates some thoughtful
consideration about the issues and some knowledge about how
to best respond to people experiencing psychiatric
crisis.” Officers
trained to deal with mental illness in short supply Many police departments have specially trained officers and mental health professionals whose job is to help defuse the sometimes-volatile "5150" calls that involve people in the throes of mental illness. But those officers are in short supply, and often they are unavailable in a crisis, as happened in Sacramento and the San Diego suburb of El Cajon, where police encountered men with mental problems and ended up shooting them to death. In this Sept. 28, 2016 file photo, a man stands behind a picture of Alfred Olango during a protest, in El Cajon, Calif. (AP File Photo/Gregory Bull) In this Sept. 28, 2016 file photo, a man stands behind a picture of Alfred Olango during a protest, in El Cajon, Calif. (AP File Photo/Gregory Bull)
Both cities would like to add additional resources but neither has the money. "Funding for mental health services has been cut, and we are responding to more of those types of calls," El Cajon police Lt. Rob Ransweiler said. El Cajon, a city of 100,000, and Sacramento, the state capital with nearly half a million residents, each have a grand total of one mental health team that pairs a professional counselor and a specially trained officer. "We can't really expect that they can cover 100 square miles of the city 24/7. It's been a very effective program, but it is limited by resources," Sacramento police spokesman Matthew McPhail said. The National Alliance on Mental Illness, the nation's largest grassroots mental health advocacy organization, estimates that only 3,000 of the nation's 18,000 law enforcement agencies have mental health response teams like those in Sacramento and El Cajon. The alliance is calling on more departments to adopt so-called crisis intervention teams, often called CITs. "Even in cities where a CIT is in place, you have no guarantees," said Ron Honberg, a researcher with the alliance known as NAMI. "But it's always better to have the advanced training than not having it." In Sacramento, state grants pay for a specially trained officer and mental health professional who respond together to 5150 calls. But the pair is limited to working in areas deemed to have the greatest need for mental health services. Even departments with multiple intervention teams still struggle to answer every call with trained officers and mental health workers. When 5150 calls come in, the officers with specialized training are often already dealing with another situation or they are off-duty at departments that have no backup. That was the case last summer when a mentally ill man was waving a knife on a Sacramento street. And it happened again last week when a man in El Cajon was acting erratically and walking into traffic. "A lot of crises don't happen between 9 and 5," Honberg said. Beyond the formal teams, many departments including Sacramento's are training all officers in "de-escalation" techniques that stress giving an agitated suspect "time and distance" instead of aggressively rushing in for an immediate arrest. San Francisco police spent six hours on Sept. 24 talking with a suicidal man who threatened to kill officers with an assault rifle. The daylong standoff shut down a train station, but the incident ended peacefully after crisis negotiators urged the man to surrender. The weapon turned out to be a pellet gun. "As long as we have time to talk to this person, we have hope," San Francisco officer Carlos Manfredi said. The Virginia-based Treatment Advocacy Center published a study last year showing that police are 16 percent more likely to shoot and kill mentally ill suspects than other suspects. "It's one of the biggest nightmares for families of people with mental illness ... and for law enforcement, too," said John Snook, the center's executive director. That nightmare played out in Sacramento last July when Joseph Mann, a mentally ill homeless man, was shot 14 times. His family has filed a federal civil rights lawsuit alleging that responding officers failed to seek assistance from mental health professionals or follow state guidelines for confronting mentally ill suspects by first attempting to diffuse the situation. On Monday, the family called for two of the officers to be charged criminally after a recording captured by their dashboard camera revealed that the officers had discussed running down Mann with their vehicle before they shot him just seconds after getting out of their car. The officers' attorney says they protected the community from an armed and erratic suspect. In El Cajon, a police officer opened fire on Alfred Olango within a minute of arriving on scene following multiple 911 calls by Olango's sister, who described her brother as mentally unbalanced. The officer fired when Olango took a "shooting stance" and aimed an object at him that turned out to be a 4-inch electronic cigarette device called a vape pen. After racially charged fatal police shootings of unarmed suspects, the Washington D.C.-based Police Executive Research Forum has been training departments in "de-escalation" techniques, teaching officers to give agitated and disturbed suspects "time and distance" to calm down before moving in for the arrest. In California, lawmakers recently
passed legislation requiring increased officer training when
it comes to interacting with disabled suspects, including
those with mental illness. Oregon police still
struggling to track mental health crisis calls Portland police – under a federal court order to improve how they deal with mental health crisis calls — still don't have a good handle on how often officers encounter people with mental illness, outside monitors say. The Police Bureau has provided "well-executed" training for 85 officers who are considered part of an "Enhanced Crisis Intervention Team," according to the new monitoring report. That means they've received more than the standard 40 hours of crisis intervention training. But it's impossible to tell if the number of specially trained officers meets demand because the bureau hasn't adequately tracked its number of mental health-related crisis calls, the report said. The bureau is working to require officers to note on their mobile computer screens if a call involves someone with mental illness. That should help better capture the data, the monitoring team suggested. In their latest report, the city-hired Chicago academics Dennis Rosenbaum and Amy Watson examined how police supervisors review officers' use of force, bureau problems tracking mental health-related emergency calls, officer training and the controversial 48-hour rule that allows officers who use deadly force to wait two days before they're interviewed by a detective. A U.S. Justice Department investigation found in 2012 that Portland police engaged in a pattern of excessive force against people with mental illness. The negotiated settlement, approved by a federal judge in 2014, calls for changes to Portland policies, training and oversight. The latest report by Rosenbaum and Watson reviews police practices from July through December 2015. Among its other findings: — The bureau has created a checklist for supervisors to conduct after-action reviews when officers use force, but doesn't require supervisors to follow it - but should, the report says. "We believe that not requiring officers to provide a statement within the first 48 hours of an officer-involved shooting and not requiring officers to fill out the force data collection report can have serious implications for community trust,'' the report says. In the four police shootings, the officers involved were asked to provide an on-scene walk-through and interview with detectives. "In each of the cases, the response was fairly uniform: 'On the advice of my attorney, I decline,'" the report says. "We recognize police officers have
Fifth Amendment rights afforded to all citizens and should
not be criticized for asserting that right,'' the report
says. "In the context of community trust, however, we
suggest PPB encourage the use of voluntary public safety
statements when possible, with the understanding that a full
interview will occur later.'' Police use of
force, CEWs, and the mentally ill Recently there have been several court decisions — including those at the federal level — that have addressed the issue of police use of force involving mentally ill subjects. One of these cases comes from the U.S. 10th Circuit and another from the U.S. 4th Circuit. Both of these cases merit our consideration. On February 4, 2015, the U.S. 10th Circuit Court of Appeals decided Aldaba v. Pickens which dealt with a case where the subject was contacted in the context of a protective custody issue rather than a criminal violation. The subject went to the hospital voluntarily. He was diagnosed with dehydration and severe pneumonia which led to a condition called hypoxia-low oxygen levels, which can affect one’s mental state. After being admitted to the hospital, the subject’s condition deteriorated from being pleasant and cooperative to being anxious and aggressive. He began to display bizarre behavior and accused the hospital staff of trying to poison him. He also claimed he was God and Superman. In addition to providing police officers with crisis intervention team training, agencies should also be providing training on the topic of "excited delirium." In addition to providing police officers with crisis intervention team training, agencies should also be providing training on the topic of "excited delirium."
The 10th Circuit decision The subject was prescribed some sedatives in an attempt to calm him but he refused the medication. The police were then notified for "assistance with a disturbed patient." Two officers responded to the call. They observed the subject standing in a hall, visibly agitated. The officers tried to calm him and ordered him to the floor but he refused to comply, even after repeated warnings that they would use a Conducted Electrical Weapon (CEW) on him. One officer fired his CEW in probe mode, striking the subject in the upper torso. The CEW was not effective and a physical struggle ensued. The subject was pushed face-first against a wall and the officer used his CEW in drive-stun mode to the back of his shoulder. This was also ineffective so the subject was forced to the floor, where he continued to resist. The officers were finally able to restrain the subject to the point where a nurse was able to administer sedatives. The subject then went limp, made a grunting sound and vomited and stopped breathing. Medical personnel immediately initiated CPR but the subject died shortly thereafter. The 10th Circuit affirmed the trial court’s denial of granting qualified immunity to the officers in the subsequent lawsuit. Besides to considering the tenets of Graham v. Connor, (severity of the crime, whether the suspect poses a threat to the safety of the officers or others, and if he is actively resisting arrest or attempting to evade arrest by flight) the court added some additional relevant factors to apply in cases involving cases where no crime has been committed. The 10th Circuit identified: 1. Governmental interest in protecting the individual from harming himself Where the reason for the seizure is to ensure the individual receives medical treatment for a compromised physical condition, "Law enforcement officers should be especially sensitive to the likelihood that a particular use of force may do more harm than good." The court ruled that due to the subject’s compromised physical condition, the officers should have known he was gravely ill and was likely to have a diminished mental capacity. This factor weighed against the officers when determining reasonableness of the officers’ decision to use a CEW and wrestle him to the ground. Furthermore, the first two Graham factors also weighed against the officers since the subject committed no crime and he posed no threat to the officers or anyone else but himself. Therefore, in this case the only governmental interest was that of protecting the subject from himself. Previous decisions have found the use of a CEW constitutes "a serious use of force" which cannot be justified against someone who is only passively resistant, or has committed a misdemeanor and is not posing a threat to the officers or others. In this case, the subject committed no crime whatsoever. The 4th Circuit decision A similar decision was reached by the U.S. 4th Circuit Court of Appeals on January 11, 2016 (Armstrong v. Village of Pinehurst) which involved similar facts and involved a subject who was "a stationary, non-threatening, mental patient who resisted being taken into custody by passively clinging to a signpost while seated on the ground." In this case, officers again used a CEW in Drive-Stun mode on a subject who had not committed any crime (let alone a serious crime). This subject had been diagnosed with bipolar disorder and paranoid schizophrenia, and had not been taking his prescribed medications. He had been displaying odd behavior which included jabbing holes in his leg with an ice pick, "to let the air out." His sister took him to a mental health facility but he "eloped from the facility" so law enforcement was called. A physician at the facility had determined the subject was a danger only to himself and prepared paperwork for an involuntary commitment. When the officers found the subject he was clinging to a stop sign post and he defied repeated requests to let go. After only about 30 seconds of dialog, an officer used his CEW in drive-stun mode repeatedly which only increased the subject’s resistance. It took five officers to pry him from the post and he was handcuffed prone on the ground. He continued to struggle until at one point, he ceased moving at all. Resuscitation efforts were unsuccessful and he died. The medical examiner ruled the cause of death as excited delirium. The 4th Circuit Court of Appeals also ruled in this case, that a person’s mental health status should be a factor to consider when determining proper use of force. The court stated that employing a CEW, in any mode is "serious injurious force" and is not appropriate when dealing with suspects who are not "serious threats or posing an immediate danger to anyone besides themselves." It should be noted that the term "serious injurious force" is a term not previously recorded in any federal court case, according to attorney Mike Brave, legal counsel for TASER International. Points to consider It is obvious that many courts are taking a dim view of using force on persons who have committed no crime. They are taking an even dimmer view if it involves a person who is mentally ill or appears to be mentally ill. Using a CEW on persons in these categories has become increasingly more risky from a civil liability perspective, and law enforcement agencies need to inform their officers of these cases and train to avoid using any significant force on persons who pose no threat to officers or others. Persons who pose only a threat to themselves should be treated with extreme caution in regards to using physical force to "save themselves from themselves." An analogy would be an officer using deadly force to stop a person from committing suicide. While this would be an extreme example (and clearly not legally justified) it demonstrates the logic courts are using to reach these decisions. Law enforcement needs to take note of these cases and recognize, "the times, they are a changing." While it goes against what many of us have practiced for years in regards to helping others, even if it meant using physical force, the fact of the matter is, doing so can place you in jeopardy of being sued for violating a person’s civil rights. The days of using cops to enforce medical protocols such as hospital policies, paramedic policies are pretty much over. Physically forcing someone to go to a hospital or mental health facility when they are only a danger to themselves and have not committed a crime may very well put you in a trick bag. It would be desirable to use verbal persuasion techniques, such as those promoted in CIT classes whenever possible. As an example, I was sent to assist our paramedics on a call where an adult male had fallen off his bicycle. He received some minor scrapes but nothing serious. He had been drinking but otherwise had no indication of being intoxicated. He had already summoned his mom to come pick him up and he was refusing to go to the hospital. The paramedics initially were OK with releasing him and intended to have him sign a standard liability release form, which he was willing to do. When the medics called the ER and spoke with the on-duty physician, he advised since the man had been drinking he would have to be brought to the ER. The doctor would not allow the man to be released at the scene. When the paramedics informed me of this I told them if they wanted to force him to go to the hospital they were on their own as I had no legal authority to force the issue. I then cleared from the call and the paramedics wisely did the same. While I’m sure the doctor was not happy with this, had I forced the man to go to the hospital under these circumstances, and had it led to using physical force, I would have been at great risk for being sued for a civil rights violation. The doctor was in no position to indemnify me for my actions-I was responsible for my own actions, notwithstanding the orders of a physician. Training issues In addition to providing police officers with crisis intervention team training, agencies should also be providing training on the topic of "excited delirium." Not doing so places you at risk of being successfully sued for a failure to train claim. Both of the cases in this article involved subjects who were displaying signs of mental illness and "excited delirium." It is important for first responders to have an awareness of the problems and solutions to these types of situations. While both of the cases mentioned in
this article involved the use of a CEW, an argument could be
made that in reality, any use of force that involves any
infliction of pain could apply to these situations.
Therefore, you should consult with your agency’s legal
adviser for direction on how to respond to these types of
cases. CEWs and
non-violent resisters: A court weighs “excessive
force” In light of a recent restrictive appellate court decision, a prominent police attorney is calling on law enforcement trainers to develop effective tactics that do not involve pain compliance for controlling subjects who are resistant, mentally ill, but not violent toward others. The challenge was issued by attorney Laura Scarry, an instructor for both the Force Science Certification Course and FSI’s body camera course, during a dissection of the case at the annual training conference of the International Law Enforcement Educators & Trainers Assn. (ILEETA) last month. In a decision on January 11, the majority of a three-judge panel of the 4th Circuit of Appeals ruled in a civil rights lawsuit that officers used “unconstitutionally excessive force” by delivering CEW drive-stuns to a stationary, non-threatening mental patient who resisted being taken into custody by passively clinging to a signpost while seated on the ground. Stating that a subject’s mental health should be factored into use-of-force decisions, the panel declared that employing a CEW in any mode is “serious injurious force” and is inappropriate when dealing with suspects who are not “serious threats or posing an immediate danger” to anyone besides themselves. (“Serious injurious force” is a term not previously recorded in any federal court case found on Westlaw, the legal research service, according to attorney Michael Brave, national/international litigation counsel for TASER International Inc.) In the opinion of Brave, who has studied the case and offered observations during Scarry’s presentation as well as during another ILEETA class, the Court’s ruling can be interpreted as applying “to any infliction of pain,” not just to CEW deployment. “Most people who comment about the case,” he said, “miss this important point.” The Court’s full decision (Estate of Armstrong v. Village of Pinehurst, et al.) can be accessed free of charge by clicking here. The decision applies only within the 4th Circuit (Virginia, West Virginia, North Carolina, Maryland, and South Carolina), although it may be referenced by attorneys and courts in arguing litigation in other jurisdictions. While no appeal to the US Supreme Court has been filed at this writing, the parties have until May 4 to do so. Here’s the gist of the decision: Danger Only to Self The subject in this case, a 262-lb., 43-year-old man with bipolar disorder and paranoid schizophrenia, had been building toward a breakdown during nearly a week of skipped meds and “odd behavior,” including jabbing holes in his leg with an ice pick “to let the air out.” His sister brought him to a regional hospital in a small, golf-resort town in North Carolina, where, during an evaluation, he became scared and “eloped from the emergency department.” Police responded, while a physician who’d decided he was “a danger [only] to himself” prepared papers for his immediate involuntary commitment. Within a few minutes, three officers found him nearby, wandering in and out of a busy roadway. They initially engaged him in “calm and cooperative” conversation, despite his eating grass and dandelions and putting cigarettes out on his tongue. But once they learned the commitment papers were complete and moved to take him into custody, he sat down, wrapped himself tightly around a stop sign post “in defiance,” and wouldn’t budge despite their trying to pry him loose. Pleas from his sister and the arrival of two hospital security officers proved unpersuasive. After a standoff of “just 30 seconds or so” after the officers learned the commitment papers were complete, one of the officers warned the subject that he “would be tased” if he didn’t comply. When that advisory had no effect, the officer discharged his TASER X26 CEW in drive-stun mode to the subject’s shoulders — “five separate times over a period of approximately two minutes.” That “actually increased [his] resistance,” according to the appellate decision. Finally, all five officers were able to grapple him free of the post and shackled him in a prone position in the grass. He continued to kick and struggle...until “he was no longer moving--at all.” Resuscitation efforts failed. Cause of death, per the ME’s autopsy report: “Complications of excited delirium syndrome.” Courts Speak A federal district court readily dismissed an excessive force complaint from the subject’s estate by granting the officers summary judgment on grounds of qualified immunity. On appeal, the 4th Circuit panel sustained that decision on technical grounds. Nonetheless, the majority of the panel declared that the officers did unconstitutionally use “unreasonably excessive force,” and established a rigorous standard that LEOs would be expected to meet going forward. In its 39-page decision, written by Judge Stephanie Thacker, the majority focused on the facts that the subject was mentally ill, unarmed, not aggressively combative, and had not committed even a minor crime. A subject’s mental health is a factor that a “reasonable officer” must take into account “when deciding when and how to use force,” Thacker wrote. In contrast to the urgent need to seize a dangerous and threatening criminal, taking control of a mentally ill person who poses only a threat to himself “does not vindicate any degree of force that risks substantial harm to the subject.” In this case, the subject was seated, “stationary, non-violent, and surrounded by people willing to help return him to the hospital,” the majority decision said. “That [he] was not allowing his arms to be pulled from the post and was refusing to comply with shouted orders to let go, while cause for some concern, do not import much danger or urgency into a situation that was, in effect, a static impasse.... “Immediately tasing a non-criminal, mentally ill individual, who seconds before had been conversational, was not a proportional response,” Thacker continued. “Deploying a taser is a serious use of force” inflicting “excruciating pain” and is “proportional force only [when] a reasonable officer perceive[s] some immediate danger that could be mitigated” by using that weapon. “[N]on-compliance with police directives and non-violent physical resistance” are “not synonymous” with immediate dangerous risk, Thacker emphasized. That, the majority claimed, is in line with what other federal circuits have held, and cases from other jurisdictions are cited throughout the ruling. Future Limits Even though Thacker and Judge Barbara Keenan believed excessive force was used, the appellate panel still concurred with the district court’s dismissal of the lawsuit. That, Thacker explained, was because it was not so clearly established at the time of the incident that every reasonable officer would have known that the use of a CEW under the circumstances was constitutionally forbidden. Going forward, the majority sought to erase any doubt on that score. “A taser, like a gun, a baton, or other weapon, is expected to inflict pain or injury when deployed,” the decision stated. “It, therefore, may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk and that is likely to be cured by using the taser. “A subject...does not create such a risk simply because he is doing something that can be characterized as resistance--even when that resistance includes physically preventing an officer’s manipulations of his body. “Erratic behavior and mental illness do not necessarily create a safety risk either. To the contrary, when a seizure is intended solely to prevent a mentally ill individual from harming himself, the officer effecting the seizure has a lessened interest in deploying potentially harmful force.... “[L]aw enforcement officers should now be on notice that such taser use violates the Fourth Amendment.” Reservations One panel member, Judge J. Harvie Wilkinson III, in a separate eight-page opinion, agreed that the case should be dismissed but chastised his colleagues for their conclusions regarding excessive force. “This was a close case,” he wrote, “the very kind of dispute in which judicial hindsight should not displace the officers’ judgmental calls.... [C]larity is often illusory. Today’s prescription may not fit tomorrow’s facts and circumstances.... [B]right-line rules at most imperfectly take account of the slight shifts in real-life situations that can alter what are inescapably close judgment calls.... “Delivering vague proclamations about do’s and don’ts runs the risk of incentivizing officers to take no action, and in doing so to leave [mentally ill] individuals and their prospective victims to their unhappy fates.” What’s OK? Although the Court did not specifically say so, Brave believes that the language undergirding the decision’s key finding can be read this way: “If a person is not perceived to be a flight risk or an immediate threat to officers or others besides himself, you can’t do anything to gain compliance that causes pain.” That would include not only discharging a CEW but using pepper spray, punching, tackling, throwing to the ground, K-9, baton strikes or leverage, or joint locks producing pain. The Court offered no direct guidance on what would have been acceptable in the incident at hand. However, in citing a different case the majority favorably mentioned crisis “counseling,” and also noted that the North Carolina subject eventually was freed from the signpost by five officers wrestling him off of it. (Ironically, Brave pointed out, this intense struggle against multiple officers probably inflicted much more dangerous stress and strain on the man’s system than “a few seconds of localized pain” from the drive-stun.) Ultimately, though, as challenging as
the task may be, “Trainers have a responsibility to
adapt or develop solutions on how officers can safely
respond to non-violent, non-compliant subjects,” Scarry
said. Baltimore
police issue new use of force guidelines The Baltimore Police Department on Wednesday updated its use of force policy to mandate that officers immediately render aid if someone in custody complains of an injury a year after an arrestee suffered a critical spinal injury in a police van but was initially denied medical treatment. The new policy provides a complete overhaul of the old, which included very little information about what constitutes appropriate use of force. Instead, the policy largely focused on how to document incidents with supervisors. Police Commissioner Kevin Davis began the process of overhauling the policy last fall, after Freddie Gray, a 25-year-old black man from West Baltimore, died a week after his neck was broken in the back of a police transport van. Six officers have been charged in his death and two acquitted. A third will be retried after a mistrial in December. At least twice during the 45-minute wagon ride from the site of his arrest to the police station where he arrived unconscious, Gray indicated that he wanted to go to a hospital, but the officers never called a medic because they did not believe he was really injured, but simply trying to avoid going to jail. The new policy leaves no wiggle room: If a prisoner says he is injured even if he shows no signs of distress, officers must take him to a hospital. The updated version, which is 14 pages rather than just six, includes sections on de-escalation tactics, and mandates that officers immediately render aid if someone is injured in police custody or complains of an injury. The department's use of force policy is among many departmental updates to be rolled out this year, including body-worn cameras and the launch of a new online platform that will ensure all officers read and understand general orders as they are issued and updated. According to the new rules, which will go into effect across the department July 1, officers must attempt to de-escalate a potentially violent situation before using force, if possible, employing tactics that include verbal persuasion and warnings. Additionally, the new policy specifies that officers may use force only if it is objectively reasonable, necessary and proportional to the circumstances. Unlike the previous policy, the new
guideline instructs officers when they aren't permitted to
use such force: if a person's actions only threaten property
or themselves. The policy also prohibits chokeholds and
requires officers to step in and prevent unnecessary or
excessive uses of force by other officers. 15 use-of-force
cases every cop needs to know Understanding use of force case law will help you train your officers to act within the confines of the law. Knowing these cases will help train you on how to investigate use of force. Understanding what SCOTUS and lower courts have said will also help you educate the public on exactly what cops are able to do and how that looks. Here are 15 use-of-force cases that every department and elected official must know, understand, use, and preach. The following are just the names and a quick one-line explanation. Do your homework with a thorough examination of each. 1. Graham v. Connor — This is the
essential use of force rubric in the country. Don’t Just Train Your Officers — Train Everyone Educating the public on police operations — especially use of force — is going to be the next big thing for quite some time. Furthermore, by understanding this case law we are giving officers an understanding of the legal ground on which they stand so they do not have to be afraid to use it. In today’s climate we’re seeing too many officers not reacting like they should and getting seriously hurt or killed. This trend has recently been coined as “deadly hesitation.” It’s chalked up to a lack of understanding of the law and a lack of courage on behalf of communities to back their officers. All of this could be fixed by well-informed chiefs, mayors, council members, reporters, and officers. Do not assume that judges and district attorneys know and understand use of force case law like you do. This is not their fault. It is something they rarely touch. They can prosecute a drunk driver or domestic violence arrest in their sleep but a police shooting rarely (if ever) comes across their desk. Are you a master of every facet of your job? Don’t let your district attorney base their charging decisions off of a lack of understanding of the law and how it works. You may find it useful to comb through the aforementioned cases with your local DA to help foster an environment of understanding all the way around. I would suggest doing it before an event rather than after There are several other important
cases out there — the 15 listed above are just a few of
the big ones. This is in no way a comprehensive list. If you
know of current cases regarding use of force please leave
them in the comment section below for all of us to
review.
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