Tuesday, December 16, 2014

Appropriate Police Response to Arresting a Non-Violent Offender

Police officers are one of the most important, yet least respected occupations in society. Too often their duty is marginalized and their mistakes amplified. This lack of respect for their position has created greater difficulty in performing even simple acts like placing an individual under arrest for even an obvious and public crime. Interestingly this increased complication raises an important societal question: how should a police officer arrest an individual who is clearly violating a law in a public space and resisting arrest in a belligerent, but non-directly violent manner?

Resisting arrest typically involves at least one of the following actions: 1) threatening a police officer with physical violence during the process of being arrested; 2) physically assaulting a police officer during the process of being arrested; 3) fleeing from a police officer after the officer announces the individual is under arrest; 4) physically resisting and struggling from being restrained during an arrest attempt. Under the above definitions there is very little ambiguity regarding whether or not an individual is legitimately resisting arrest. For the purposes of this discussion only the fourth action will be considered. Unfortunately it must be noted that there have been some situations in the past where a police officer has used the guise of a false charge of resisting arrest to freely and unlawfully physically assault a suspect. Obviously this behavior is inappropriate, illegal and should be punished accordingly.

Some would argue that it is not appropriate for an officer to physically harm the individual during an arrest attempt instead the officer should utilize reason and words to convince the individual to yield. However, this reasoning fails to consider the irrationality behind the belligerence of some individuals. Most individuals who resist arrest in the first place will not be easy to reason with because either they reject the premise that they have broken the law and should be arrested or they are so emotional about the confrontation with the police, typically viewing the police as the enemy, that they will not listen to reason.

Therefore, the difficulty in using reasoning to defeat resistance creates an unknown for the time that would be required to convince the individual to yield. This time could range from a few minutes (the belligerence is created by raw emotion) to infinity (the person will never yield). Due to the multiple variance of personality it is unreasonable to suggest that an officer spend more than a few minutes in a public area trying to convince an individual in violation of the law to appropriately submit to an arrest if the resisting individual is not brandishing a deadly weapon. Why this time limit for discussion is necessary is because in most cities the ratio of police officers to resident is around 1-2 per 1,000; therefore, officers do not have the ability to spend large periods of time attempting to convince someone to yield when he may never be convinced. Also repetitive futile talking can be viewed as a weakness emboldening other criminals in the local area for the future.

While the time to produce a breakthrough with discussion is not long, discussion should be the primary strategy utilized to neutralize resistance. Discussion should proceed in a calm non-threatening manner where the officer explains what law the individual has broken or is currently breaking and why this requires the individual to be arrested. The officer, in clear and plain language, should repeat this explanation at least three separate times.

If after a few minutes and multiple attempts discussion has not produced a breakthrough it stands to reason that the officer will have to use force to complete the arrest. There are multiple methods of force that can be applied: 1) physically subdue the individual’s arms in a straight handcuff attempt; 2) punch or push the individual to knock the individual off-balance or off his feet; 3) sweep a lower appendage to subdue the individual; 4) neutralize the individual using a Taser or similar non-lethal method (rubber bullets, pepper spray, beanbag round, etc.); 5) render the individual unconscious using a chokehold. Typically the above methods comprise the “empty-hand submission techniques” and “intermediate weapon” sections of the “use of force” continuum for most police departments.

Of the five above options, the utilization of a chokehold on a non-violent, yet belligerent individual is the worst option because it has the highest probability of an unintended negative consequence including permanent brain damage or even death to the subdued individual. Realistically the chokehold should only be used when an officer is under direct physical assault by an individual with intent to induce bodily harm.

The utilization of force in order to subdue a suspect resisting arrest will always raise the question of what is an acceptable level of force? It is important to recognize that most cases where an officer applies excessive force are committed against restrained individuals and derived from arrogance born from an ego bruised by disrespect. Some officers believe that resisting arrest demonstrates wanton disrespect for both the officer and the police profession and that act of disrespect deserves additional punishment.

Perhaps the excessive force is thought to serve as a deterrent to reduce the probability of future incidence of resisting arrest. Unfortunately these officers forget that resisting arrest is a separate criminal charge in the United States thereby applying its own deterrence. Also the additional “deterrence” may reduce the level of respect the resisting individual has for the police making it more difficult to interact with that individual in the future. It is important that officer training emphasizes this point: that it is not appropriate or beneficial to apply force to an already restrained individual and the additional charge of resisting arrest will produce sufficient punishment.

Another aspect to consider when applying force to an individual resisting arrest is the size of the individual. Obviously it will be easier to subdue a lighter and shorter individual. Heavy and tall males are the most problematic and increase the probability that significant force will be required because they can more easily neutralize more passive force applications like simply attempting to handcuff the individual.

The application of force should follow the same procedure each time. For the first step, after the conclusion of verbal attempts to convince the suspect to surrender peacefully, the officer clearly and succinctly declares his/her intention of utilizing force and what type of force. In the second step the officer applies the first step of force: an attempt to grasp the suspect’s hands and apply handcuffs. If the suspect resists this handcuff attempt the officer should disengage, once again clearly stating the crime that the individual is committing and the need to cease resisting. If resisting continues then the officer should proceed to an additional level of force.

Typically this next level of force will involve either the use of a Taser or pepper spray. After announcing the intention to use either device if the individual fails to yield, a Taser should be discharged aiming for the leg or side of the individual where pepper spray should be discharged close to the eyes.

Using a Taser/pepper spray is advantageous to other levels of force because of its general certainty of ending resistance as well as its limited unknowns. For example punching or kicking the suspect could produce an unintended physical result like the suspect falling to the ground violently increasing the probability of greater damage or internal bleeding. Also punching and kicking could create a catalytic effect amplifying “fight” emotions increasing the probability of more kicks and punches by the officer leading to an excessive force charge.

Another negative outcome, especially against larger individuals, is that utilizing direct physical violence may not resolve the situation immediately and lead to the suspect to become violent himself creating a more volatile and dangerous situation for both the suspect and the officer. Also striking the individual could initiate a flight response leading to the suspect attempting to flee the scene making the arrest more complicated. Finally transferring the confrontation to the ground without the suspect already controlled can be dangerous for the officer as the suspect could attempt to take anything off of the officer’s belt; therefore, forcing the officer to both neutralize the suspect and protect their weapons.

Some could argue that a Tasered individual would also strike the ground in an abnormal and potentially violent manner. While this point is true, the utilization of a Taser will typically involve a more controlled descent with the head striking last. Also the fall will not be immediate giving the firing officer the opportunity to grasp the suspect and positively influence the descent limiting residual damage. It stands to reason that most would suggest the utilization of pepper spray before a Taser because of the reduced potential for severe negative consequences. However, using pepper spray may increase the probability that the suspect becomes violent (while temporarily blinded) or try to flee.

Not surprisingly though the use of a Taser has its own drawbacks. Some organizations, most notably Amnesty International, attempt to document deaths that occur shortly after being struck by a Taser. Estimated numbers range from the low 300s to the mid 500s. However, one of the major problems with these estimates is that the number of deaths is presented in a vacuum. There is no ratio relation of deaths to the number of Taser uses. For example the relevance and impact of 334 deaths is significantly different if 334 deaths were produced from 10,000 Taser uses versus 334 deaths from 1,000,000 uses. Another problem is that it is very difficult to actually associate a death directly with the use of a Taser. A third issue is that these deaths are not associated with requirements of force (i.e. there is no differentiation between whether a Taser was used to neutralize someone threatening lethal force versus non-lethal force). In situations of lethal force, the suspect would have been shot versus Tasered, thus probability of death is either even or lower with the use of the Taser.

Despite the above concerns a vast majority of subjects who are Tasered suffer either small non-permanent damage or nothing.1,2 While some believe that Tasers can damage pacemakers such a conclusion does not appear viable. A potential problem that most opponents of Taser use fail to mention is the need to remove the probes after a successful use. These probes break the skin so they need to be removed appropriately to eliminate the probability of infection or transmission of blood borne disease. While this removal is not a problem it must be executed properly after use. Overall the key to safe outcomes with Taser use is proper procedure. Single use after appropriate and numerous warnings in dart mode, not stun drive mode.

After force is utilized to arrest a suspect and the suspect is properly constrained, it is important for the officer to promptly create a written record of the incident including specific details of the events leading up to the application of the force. For example the officer should describe how the subject was resisting and what efforts were made to neutralize the resistance before the application of force, (i.e. what did the officer say, how did the suspect respond). Producing this written documentation and filing it will ensure limited ambiguity if the officer has to defend his/herself against accusations of excessive force or misconduct stemming from the event at a later time.

While it is unfortunate that police officers have to resort to force at times to manage individuals refusing to acquiesce to proper and legal arrest, the most important factor for police officers when attempting to arrest a resisting suspect is to be transparent and clear with their instructions and actions. Adhering to this principle eliminates any ambiguity and allows the officer to react to the unlawful resistance with appropriate action without the concern of wrongdoing. Such behavior also eliminates any confusion among spectators observing the resisting arrest incident with regards to what is actually happening further limiting officer liability. Finally when applying force the officer needs to be assertive and controlled. Half-actions and hesitation will produce mistakes and excessive action will erode trust and increase complication. Overall officers must have the ability to utilize force when attempting to arrest a resisting suspect even if the resistance is non-violent; however, the utilization of that force must follow a consistent procedure to ensure that it is apply appropriately.

Citations –

1. Pasquier, M, et Al. “Electronic control device exposure: a review of morbidity and mortality.” Annals of Emergency Medicine Volume. 2011. 58(2):178-188.

2. Bozeman, W, et Al. “Safety and injury profile and conducted electrical weapons used by law enforcement officers against criminal suspects.” Ann. Emerg. Med. 2009. 53:480-489.