Episode 4: Use of Force and the Law

Greetings everyone, and welcome back to another episode of The Shakedown as we unpack this topic of the use of force. We spent the last time talking about the fact that we are liable for the way that we use force. We know that we have inmates, and it is our responsibility for care, custody and control. It's our responsibility for their safety and their security. Yes, we have policies; yes, we have procedures; yes, we have an inmate handbook; yes, we have guidelines; but anytime you have people, there's going to be times when those guidelines are not going to get it. We're going to have to go above and beyond and reinforce those guidelines, and that brings us to the use of force. So we talked about last time, the fact that we do have liability in how we use force. But today, I want us to talk about what are the standards? What are the guidelines by which you and I can use force, and can we do it in a way in which we're protected, that were defended from the liability when we use force?00:44

01:19

The courts have given us some tools and a framework to help us number one, prepare to use force, but number two, when that force has been used, for us to go back and to look at it and see, did we use force in a reasonable fashion? As we said before, the courts have said that the immunity defense ordinarily should fail since a reasonably competent public official should know the law governing his conduct. So let's talk about what is that law that governs our conduct that, based on what the court said, we're responsible to know? Well, the standard for the use of force in jails is called "the sadistic and the malicious test" now those are both 50 cent words that we don't use very often, and we'll break that down. First of all, it says the "sadistic". Now, what is being sadistic? Well, being sadistic is when I get extreme pleasure at causing hurt and pain and turmoil to someone else. I hurt you, and that makes me happy. Well, first of all, there shouldn't be one of us that should be in corrections if that's our mentality. The second word is "malicious", and basically that word malicious means I am looking for the opportunity to do you harm. I am searching, I'm just waiting for someone to push the button, to stick their toe across the line, to do the wrong thing, so I can jump in and use force. I'm waiting for, I'm gaming for, I'm hoping that somebody does something so that I can use force. So that standard, the sadistic and the malicious test, is based on the eighth amendment for convicted prisoners, and it's based on the 14th amendment for pretrial detainees. 

03:05

The courts have said that when we have to use force, how the court is going to decide whether or not that use of force was in fact reasonable, they're going to use that sadistic and malicious test. Two case laws that you might be interested in looking up to gain some background to this that we don't have time to unpack today, is two court cases: Whitley v. Albers is one, and the second is Hudson versus McMillian. This is the standard that the court is going to say, "Okay, we're going to look at your use of force. Was it sadistic? Does it look like you get pleasure out of causing harm to somebody else? Is it malicious? Does it appear that you were just looking for the opportunity to cause harm to somebody else?" If the answer is "no", then that force can therefore be deemed reasonable. But how are we going to judge? How are the courts going to judge whether or not it was sadistic or malicious? The Supreme Court gave us five factors which we can use to evaluate the reasonableness of our force. These five factors are what the courts are going to use, so it makes good sense that you and I would use these five factors to judge our use of force as well. So what are these five factors?  

04:07

1. Number one: the court says that we have to look at the threat perceived by the responsible officers. Now notice first of all, it says the "threat perceived". There may be times when we hear things and we think it's this, we see things and we think it's this. We think it's an assault, we think it's an unruly situation, and our perception is that we need to do something about the situation. I'm going to read this story I heard one time. I don't know if it's true or not, but the story was humorous and it makes the point here, of a couple who lives in Chicago during the heyday of Charles Manson, the mass murderer, and this couple for whatever reason, believed that Charles Manson was going to come and murder them in their home. They were consumed with it. They couldn't think about anything else. So one night, they go to sleep. The wife falls asleep first. And the husband, he's about to drift off to sleep when he hears a noise in the living room. Well, of course, where his mind immediately went to is he heard the noise, so Charles Manson must be in the living room. Well, he didn't want to startle his wife, so he eased out of the bed and eased across the bedroom. When he got to the bedroom door, he thought, "I'm going to close this bedroom door just in case, to keep my wife safe." He closes the door very gently, and eases down the hallway to investigate and see what this noise is.

04:42

The sound of the door closing woke up his wife. When she woke she was kind of startled and she rolled over to see her husband, and her husband was gone. Now in her mind, where's her husband? Charles Manson's got her husband, and he must be in the house. She leans over, she sees the doors closed, and she thinks, "my only way of safety is keeping that door closed." So she jumps out of the bed, runs across the room, and slams into the door to barricade it closed. Well, the husband, he's in the hallway creeping towards the living room, and all of a sudden, he hears the sound of feet running across the floor in the bedroom, and a body slamming into the bedroom door. Where does his mind go? "Charles Manson is in the bedroom with my wife." So, he's her husband, he's her knight in shining armor, so he turns around and he is on his way to rescue his wife. In his mind, he's going to barrel through that door and he's going to be the hero and rescue his wife from Charles Manson. He runs down the hall and slams into the door, but his wife has done a pretty good job of barricading the door up so the door doesn't open. He is convinced that his wife is now locked in the bedroom with the murderer, Charles Manson. The wife on the other side of the door, heard the footsteps approaching the bedroom door. Then all of a sudden, the door nearly is broken open with a body on the other side of it pushing. In her mind, Charles Manson is on the other side of that door, trying to get to her. He's probably already murdered her husband, and now he's coming to murder her. So with every ounce of strength she has, she is going to survive this and she's going to keep Charles Manson from getting into the bedroom. So here's this husband and wife, beating each other up with the door, both of them assuming that Charles Manson is on the other side, and they have to do what they can to stay alive. Was Charles Manson actually there? No, he wasn't. Their perception was that the threat was real, even though the reality was that it wasn't. When the Supreme Court talks about the threat perceived by the responsible officers, you and I have to base our actions off our perception of what is going on. So if we see a situation, and we realize, "I need to do something about this," that is our perception, and then we responded to that perception. So the court wants to know: what was our perception of the threat?

08:17

2. The second factor is whether in light of the perceived threats, or whatever we think is going on, whether we heard it, saw it, etc., what our perception is, was it reasonable to infer that force was necessary to resolve this situation? When we talk about force, we're talking about levels of force. Officer presence is a level of force. Verbal commands: "stop that," "let go of him," "you stand over there, you stand over there," that's a level of force. Articulation of consequences is a level of force: "look, if you don't stop," "if you don't go to your cell," "if you don't turn around, you're going to be written up for a disciplinary," "you're going to lose your commissary," "you're going to be..." etc, etc, etc., that's a level of force. Soft hand techniques: I put my hand on him and try to guide him away, that's a level of force. Use of tools: less-lethal tools, a taser, or spray, etc., that's a level of force. Hard hand tactics, that's a level of force. So when it talks about whether in light of the perceived threat, it was reasonable to infer that force was going to be necessary to resolve this, that doesn't necessarily mean that I thought, "based on this situation, I'm going to have to go in and and tase this individual, I'm going to have to go in and tackle this individual." No, there's a situation and it was reasonable to assume--it was reasonable to infer--that that situation demanded my attention, so I responded to it. 

09:44

3. Third factor: what efforts were made to temper the severity of the force? What efforts were made to temper the severity of the force? I hear in the state of Alabama, if someone kicks in my front door at home, and they come barreling through into my living room, if I at that point in time, pull my weapon, and I engage that target and I shoot them and I take their life, I am not going to be guilty of murder. Why? Because it was reasonable to infer that force was necessary, and that subject didn't give me the time to use a lesser amount of force, the force was reasonable. However, if I have a "No Trespassing" sign on the edge of my yard, and a person walks into my yard, and I walk out my front door and I see them standing in my front yard, in that situation, I cannot draw my weapon and engage that target and end their life. Why? Because I made no efforts to temper the severity of force. I didn't communicate with them, I didn't find out what they were doing, I made no assessment, I just engaged the target and used deadly force. Did we make any efforts to temper the severity of the force? Now, there are going to be situations in which we don't have time for that. If you or I walk into a housing unit, and there's an inmate that's his arm around another inmate's throat, and we can see that he's locked in and he's pulling, he's choking him out, I don't have time for "Okay, officer presence, verbal commands, articulation of consequences, soft hand technique..." I don't have time for all that. I've got to do what I need to do now because somebody's life is on the line. But, in those situations in which I do have time to go through some lower levels of force, did I make those efforts? Did I give verbal commands? Did I articulate potential consequences? Did I try soft hand techniques, etc, etc? If it was available, did I attempt to use those measures? If the answer is yes, then the court is going to say, "Hey, that's reasonable. He tried this, he tried this, he tried this, he tried this. That didn't work, so he had to use this amount of force." So did we at least attempt, if given the opportunity, to use lower levels of force? 

12:03

4. Factor number four: the amount of force used in relation to the need for force. Does the amount of force that I use, does it measure up with what was going on? If I have an inmate who's refusing to go to their cell, and they're just standing there peacefully, and refusing to go to their cell, that I just walk in the dorm, and that I just tackled him to the floor, that I engaged them with a baton, that I just draw my taser and taser them, and in the process, they fall and they hit their head on a table or the wall or etc. Well, they're just standing there. Is it going to be reasonable to say that person who is just standing there, that I used all that force on them because of what they're doing? It's going to be a hard sell. So, was the amount of force used, was it reasonable? Was it reasonable to the need for force? Could I have (that's back to that efforts to temper the severity of force) did I attempt, and they refuse to comply? Therefore, I had to end up with this. It may be that I started the verbal commands and they didn't respond. I articulated consequences, they didn't respond. I tried soft hand tactics and grip control, and they continued to resist, and it may be that in the process of using those soft hand tactics, they attempted to pull away and assault me. Well at that point in time, now I'm justified in using a higher level of force. Why? Because they accelerated, they took that level up, therefore, I had to match and exceed that level in my use of force. So, the amount of force used in relation to the need for force, is that reasonable?

13:43

5. Then, the fifth factor. The fifth factor is: whether the injuries suffered by the prisoner were clearly of greater severity than the circumstances to plausibly justify. When this is all said and done, and I have that inmate secured, I have him detained, do the injuries that he has, as a possible result of that use of force altercation, the injuries that he sustained, does it line up with the events that took place? If I have an inmate that's refusing to go to his cell, and I use soft hand tactics, I get a hold of his armor, I get a hold of him, and I escort him to his cell, I secure him in his cell, and I close the door. If I have to call medical to him to receive medical attention because of a fractured collarbone or fractured orbital bones, or his he's bleeding profusely from his face, are those injuries going to line up with the fact that I said, "I used soft hand tactics and escorted this inmate to his cell?" Absolutely not. There are some pieces missing there. Now, could it be possible that the inmate was already injured before I got there? Sure, that's possible. If I have two inmates involved in an altercation, they may have caused injuries to each other before I even got there, and in the process of getting them separated and getting them detained, at the end of that here are these two guys that I say I used soft hand tactics on, and both of them have suffered injuries that obviously exceed what should be the results of a soft hand tactic. Well, I need to make sure that I document that when I write my report, about what took place in that altercation. 

15:28

These are the five factors the Supreme Court has given us: the threat perceived by the responsible officer, whether or not in light of those perceived threats, it was reasonable to infer that force was necessary. I've got to do something, I've got to at least show up, if not more than that. Number three, what efforts were made to temper the severity of the force? Did I try a lower level, if possible? The amount of force used in relation to the need for force. I said, "this is the amount of force I need, this is the amount of force that I used." Do those lineup? And then five, if the inmates suffered any injuries, whether those injuries line up with the use of force. Were the injuries of a greater severity, than the circumstances would justify? Those five factors are what the Supreme Court has given us to judge our uses of force by. So, take those five factors, pull them apart, think about them, look at him, and look at situations and see, "can I justify my use of force based on those five factors?" Well, next time we're going to jump in, and hopefully wrap up our talk of use of force. We're going to jump in and we're going to talk about documentation. 

16:38

After it's all said and done, I'm not done, you're not done, we've got some work to do. We're going to talk about that documentation and some tips on how we can do that well, but until next time, Godspeed to each of you, and as always, be sharp, be safe, be vigilant.