Episode 3: Use of Force and Liability

THE SHAKEDOWN
A Podcast by the National institute for Jail Operations (NIJO)
Hosted by Warden Aaron Dawson

00:11
I'm glad to be back with each of you as we jump into the topic that is use of force. When we talk about topics that we can look at and deal with as a part of a corrections officer, there's probably very few that are as huge of a topic as the use of force. So, that being said, there's no way we could tackle the entirety of this topic in one episode. So we're gonna break it up over a few episodes, but I want us to get started talking about use of force and considering the liability that goes with it. 

00:44
Anytime we interact with other human beings, there's a risk of something happening. Well, you and I corrections officers, we're dealing with inmates, a bunch of people in a small location, and so with that goes liability. We're dealing with people that have demonstrated a clear, in most cases, lack of ability to exercise self-control. And here we are putting a bunch of those people in the same place, and we are trying to exercise control. We're telling them when to get up, when to go to bed. We're telling them when to take a shower, when to eat. We're telling them when to go outside, when to come back in. We're telling them what to get dressed, and so forth, and so forth and so on. It's going to come up where they don't want to do what it is that we're telling them to do. So when we're confronted with that situation, and we say, "Hey, I need you to do this..." "No, I'm not doing it, I'm not doing it..." we're faced with a choice. We could just walk away and say, "Well, they don't want to do it. So alright, see ya." Well, if we do that, we're not maintaining control; they're in control. So we're going to have to address the situation. And often, that's going to get to the point where we're going to have to use force. We're dealing with inmates with dealing with those inmates comes liability. 

02:05
So let's say the situation presents itself: We're doing our job, we give some instructions, we're encouraging these inmates, we want you to follow the rules, while the inmate handbook follow the policy procedures. We give a set of instructions, and the inmate refuses, and the situation escalates to the point to where, to maintain control, we have to use force. Well, in the process of using that force, the inmate gets injured. Maybe in our attempts to maintain control and to do what needs to be done, we had to use strikes and those strikes cause an injury, or maybe we utilize a tool such as OC or a taser and we utilize that tool and they fall and in the process of falling they hit some objects on the way down. Any number of things could happen, but the inmate gets injured. Well, when his family gets word that he's injured, when word gets out that an inmate has been injured by a corrections officer using force, the question is going to be asked: who is responsible? Now if we stop and think about it, who really is responsible? Is it me? Is it you? Did we go into that setting? Did we go into that situation? Looking to use force, were we the ones that prompted the situation to escalate to the point where force was necessary? No. We came in to do our jobs, to maintain control. The inmates lack of going along with and doing what they were being asked to do, forced us to respond to their action by using force. So when it comes down to it, who's responsible? The inmate is responsible, but chances are if an inmate is injured, that's not how his family, that's not how his attorney, that's not how many, maybe in the community and in the media are going to look at it. They're going to want to know, they're going to ask the question: who is responsible? When it comes to answering that question: who is responsible? Who is responsible for the situation? 

04:11
Thankfully, we're not based upon our own judgment or the judgment of the media or the judgment of the inmate's family, or even the judgment of the sheriff. The courts have ruled on numerous cases involving use of force. And we can look to those to kind of get an idea of what is our responsibility when it comes to the use of force. In one of those court cases, Harlow versus Fitzgerald in 1982, the court stated this, they said, "We therefore hold that government officials," that's us, "performing discretionary functions generally are shielded from liability for civil damages, insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." So notice what they said, they said "alright, here's the deal, if we use force, and our force does not violate clearly established statutory or constitutional rights, of which a reasonable person would have known, we're good." Let's back up. Who gets to define what's reasonable? Now we can look at the law and we can see this is what the Constitution clearly states are this individual's rights. That's easy. But notice, it says, of which a reasonable person would have known? Do I get to define what's reasonable? Do you get to define what's reasonable? Does the sheriff get to define what's reasonable? No. The answer to all those questions is no. The courts get to define what is reasonable. The courts gets to decide whether or not what you or I did was reasonable.

05:50
In that same case, the courts later said, "If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Again, notice they use the term reasonable, but they said "reasonably competent". So again, who gets to decide competency? Do I get to decide whether I was competent? Do you get to decide? Again, the courts are going to look at what we did, and they're going to decide whether what we did was reasonable, and whether a competent public official or corrections officer, you could say, a reasonably competent corrections officer would have done it this way. But notice, the statement is made "a reasonably competent public official should know the law governing his conduct". Are there laws that govern the conduct of corrections officers? Yeah, there are. Do we know them? Do we know what the law states? The court is saying that if we are reasonably competent, not overly competent, if we are reasonably competent, we should know the laws that govern our actions. If I get sued for using force, and I go to court, and the judge asked me, "Warden, didn't you know that the law states X, Y, and Z about the use of force?" If I look at that judge and say, "Well, you know, your honor, no. I didn't know that. I didn't know the law stated that. I mean, had I known the law stated that I might have done differently. So your honor, I didn't know." The judges aren't going to look at me and say, "Oh, oh, well, I mean, he didn't know. He didn't know. So I mean, well, if he didn't know, I get it. It's fine. Not guilty. You're good. Well now you know, so be careful." That's not the way that's gonna roll, because the courts have said, a reasonably competent official should know the law governing his conduct. Whether you know the law or not, whether I know the law or not, I am responsible, you are responsible to uphold that law. 

08:07
Let's say that we get sued. What is it that the prosecution is going to come after? How are they going to prove or disprove whether or not we're reasonably competent? Because here's the deal, the courts are going to assume that we are competent, that we're reasonably competent. Unless our actions show differently, they're going to assume, for example, if you're sick, or you're injured, and you have to go to the doctor, you go to the doctor. You sign in, they get you back to the room, the doctor comes in, before he says anything or does anything, are you going to look at that doctor and say, "Hold on a second Doc, hold on. I know it says doctor on the building, I know it says doctor on the business card, I know it says doctor on your jacket. But doctor, I need to know are you a competent doctor? Is there any way that I could see your degree of where you graduated from medical school? Can I get a copy of your transcript so I can see your GPA and and how you did in which classes? Is there any way I can maybe get some survey results from some former patients of yours to get an idea of whether or not you are reasonably competent?" Chances are you're probably not going to do that. Why?

09:20
You assume that he's a reasonably competent doctor, because of the fact that he's a doctor. Now, if he proves to you otherwise, different story. The courts look at us the same way. They're going to assume that we are reasonably competent corrections officers, professionals, unless we prove otherwise. So the prosecution is going to seek to attempt to prove that we are not reasonably competent officials. So what is it? What is it that they're coming after? Well they're going to come after four things: policy, procedure, training, documentation. Policy: does your facility, does your agency have a policy that dictates how you and I use force? Do we have a policy? And is that policy based upon what the Constitution states? Is that policy based upon what the courts have ruled on the case law? Do we have a policy that says "this is how you use force, these are the situations this is how much etc, etc, etc"? Do we have a policy? The second thing that comes after is procedure. Okay, you have a policy, that's great. But how do you carry that policy app? Do our practices mirror what our policy says? Now, obviously, there's going to be times where there's some slight variances, but as a rule, do our procedures, back up what our policy states? If we have a great policy, it is solid, it is right down the line just with the Constitution, just with the case law states, but the way we carry out our procedure is totally counter to that, we're dead in the water. So they're going to come after our policy. What is our policy state? Do we have one? Second, they're coming after procedure. How do we carry out that policy? 

11:06
Third thing they're coming after: training. Are you trained? Are you trained with what the policy says? Are you trained on how to carry out that policy? Are you trained on what the appropriate situations are to use force? Are you trained in how to utilize the tools that you may or may not have used? Are you trained in how to use the strikes, or the kicks, or whatever the case may be that you use? Have you been trained? And is that training, is it up to date? And is it current? They're going to look at are you trained? The fourth thing they're coming after: documentation. Is there documentation that you have read the policy, that you understand the policy? Is there documentation that shows that you carry that policy out as is dictated in the policy? Is there documentation that you've been trained? And that that training is current? And up to date? Is there documentation about the specific incident that you and I are being accused of using excessive force in the situation? Did we document it well? Now, you can have all four of those things dead on, rock solid, exactly where they need to be, but you know what? There's going to be times where stuff happens. There's going to be times where people just do stupid things. Hopefully it's not us, but there's going to be times where stuff happens. So even if all four of these things-policy, procedure, training, documentation-even if they're all perfect, there's going to be times where stuff happens and we still have to defend what it is that we needed to do to maintain control. As an administrator, it is my task to make sure that those policies and those procedures are up to date, they're current, they're rock solid, they're exactly what they need to be, that the training is being offered to my staff, and that the documentation that is being done is being done correctly and is being done appropriately. As a line officer, that's not my job. As a line officer, my job is to know the policy, to know how to carry that policy out, to take advantage of the training that is made available to me, and to utilize that training correctly and appropriately, and then to document what it is that I've done, and to document it appropriately. 

13:32
Bottom line, we deal with inmates, and we're going to have to use force occasionally. Times are going to come around when we have to use force, and we are liable for the way that we use that force. There is a risk involved in serving in corrections, but it's not a risk that has to burn us. It's not a risk that has to hurt us. Yes, we're liable. Yes, we're responsible for what we do, but there are ways to cover ourselves and to back up what it was that we did. So, what's your policy? Are you carrying that policy out? Are you trained, and are you documented? Well, it's awesome be with you today. I look forward to the next episode on use of force when we talk about what is the standard that the courts have given us by which we judge our use of force. Until next time, stay sharp, stay safe, stay vigilant. Godspeed.