This seminar focuses on developing a general use of force policy. The instruction includes methodologies and standards for developing a clearly prescriptive response to force incidents, including: - applicable case law - authority established by these cases - application of these rulings - policy documentation and reporting procedures - supervisor responsibilities - training requirements

1. Attorney Eric P. Daigle
Daigle Law Group, LLC
(860) 270-0060
Eric.Daigle@DaigleLawGroup.com

2.  Use of force policies updated and accurate to
current police practices and legal standards?
 Supervisors effectively evaluating the force used
by your officers?
 Internal affairs investigators effectively
investigate allegations of excessive force?
 Litigation and Deposition Comfort

3. KNOWLEDGE IS POWER
 How to Protect Yourself and Your Agency
 This presentation will examine and identify
common police practices
 Inconsistency – Limit Inconsistent Practices
 Identify why we do certain things
 Look outside our own operations

4.  What should you use to identify
professional police practices?
 Caution where you get your content
 Recommendations:
 State Statutes,
 State and CALEA Accreditation,
 Consent Decrees,
 Manufacturers Warnings
 Model Policies IACP, PERF, State POST,
 Contemporary research,
 Literature relating to policing.

5. USE OF FORCE POLICY
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6.  Policies and procedures shall reflect and
express the Department's core values and
priorities, and provide clear direction to ensure
that officers lawfully, effectively, and ethically
carry out their law enforcement responsibilities.
 Provide officers with the direction and guidance
necessary to improve and develop as police
officers; and to identify, correct, and prevent
officer misconduct.

7.  Develop and implement policy and
procedure manuals that include the
following functions:
 Use of Force Principles- General Standards;
 Individual Weapons
 Use of force reporting, reviews, and
investigations, including both Supervisor and
force investigations and reviews; and in-
custody death reviews;

8.  All officers using or observing force above un-
resisted handcuffing shall report in writing,
before the end of shift, the use of force in a Use
of Force Report. The Use of Force Report shall
include:
 (a) a detailed account of the incident from the officer's
perspective;
 (b) the reason for the initial police presence;
 (c) a specific description of the acts that led to the use
of force;
 (d) the level of resistance encountered; and
 (e) a description of every type of force used.

9.  Supervisors, investigators, and
management must be prepared for the
proper response and investigation of use
of force incidents.
 Supervisors must recognize their
responsibility to conduct a complete,
concise, and objective investigation into
the use of force by their officers.
 Protecting the agency in timely manner
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10.  1960’s law enforcement agencies who were
concerned that the courts were failing to provide
clear direction on how much force an officer
could use developed force models.
 Continuums were designed as a training tool for
officers.
 Over 50 different force continuums in use
across the Country.

11.  Conflict between continuum and what
amount of force is constitutionally
permissible.
 Options are often different
 Continuums fail to take into consideration
that the officers primary objective is
usually to gain compliance.

12.  Agencies have begun to change:
 San Jose (CA) Police department (2000)
 Wyoming Law Enforcement Academy (2001)
 FBI discourages the continuum (2002)
 Federal Law Enforcement Training Center (2005)
 LAPD July (2009)
 Favorite with Plaintiff Attorneys
 Keep an open mind - change is a process

13.  The test of reasonableness under the
Fourth Amendment is not capable of
precise definition or mechanical
application.
 Its proper application, however, requires
careful attention to the facts and
circumstances of each particular case
including:

14. Courts Consider Three Specific Factors:
 1. How Serious was the offense that the officer
suspected at the time that the officer used force.
The more serious the offense, the greater the
need for apprehension, thus, the greater level of
force that may be used.
 2. Did the suspect pose a threat to the officer or
any other person present,
 3. Was the suspect actively resisting or
attempting to evade arrest by flight.

15.  An officer is justified in using deadly
physical force only when he or she
reasonably believes such force is
necessary to:
 1. Defend the officer, or a third person, from
the imminent threat of death or serious bodily
injury.

16.  2. Effect an arrest or prevent the escape from
custody of a person whom they reasonably
believe has committed, or attempted to commit
a felony involving the infliction or threatened
infliction of serious physical injury; AND the
officer reasonably believes this person still
poses a significant threat of death or serious
physical injury to the officer or other persons.
 Where feasible, the officer should give warning
of the intent to use deadly physical force.

17. What Applies to Your Policy
 4th – Graham “Objectively Reasonable”
 Seizure- Arrest, Investigative Detention
 Ends at Arrest
 14th Amendment Pre-Trial Detention
 Post Arrest, Transport, Booking,
 Pre-arraignment
 Awaiting Trial
 8th Amendment Conviction
 Sentencing

18. 4th Amendment
Seizure
14th Amendment
Pre-Trial
Detention
8th Amendment
Conviction
Seizure
Ends at Arrest

19. 4th Amendment
Seizure
14th Amendment
Pre-Trial
Detention
8th Amendment
Conviction
Seizure
Initial Appearance – Release or
continued detainment is
determined.

20.  Applies only to convicted prisoners in a
detention facility, jail, or prison;
 Prohibits what is commonly referred to as
cruel and unusual punishment clause;
 Prohibits the unnecessary and wanton
infliction of pain (Use of force);
 Characterized by obduracy (i.e.,cruel,
ruthless) and wantonness;

21.  Conditions violate the 8th Amendment if:
 1. The prisoner suffered sufficiently serious
harm (deprived of an essential human need);
and,
 2. Correctional officials were deliberately
indifferent to the rights, health, or safety of
the prisoner.

22.  Use of Force.
 Whitley v Albers 475 U.S. 312 (1986)
 Hudson v McMillian 112 S. Ct. 995 (1992)
 Whitley defined use of force under exigent
circumstances.
 Hudson defined use of force for all other
uses of force.

23.  It is obduracy and wantonness, not inadvertence
or error in good faith, that characterize the
conduct prohibited by the Cruel and Unusual
Punishments Clause, whether that conduct
occurs in connection with establishing
conditions of confinement, supplying medical
needs, or restoring official control over a
tumultuous cellblock.
Whitley v Albers

24.  The infliction of pain in the course of a prison
security measure, therefore, does not amount to
cruel and unusual punishment simply because it
may appear in retrospect that the degree of
force authorized or applied for security purposes
was unreasonable, and hence unnecessary in
the strict sense.
Whitley v Albers

25.  1.What was the threat reasonably perceived by
the responsible officials?
 2. What was the need/reason for the use of
force?
 3. What was the relationship between the need to
use force and the amount of force that was
actually used?
 4. Any efforts made to temper the severity of a
forceful response?
 5. What was the extent of the injuries inflicted?

26.  The Eighth Amendment's proscription
against "cruel and unusual punishment"
protects prisoners from use of excessive
force.
 Hudson v. McMillian, 503 U.S. 1, 5-7 (1992).

27.  (1) the extent of injury suffered by an
inmate;
 (2) the need for the application of force;
 (3) the relationship between the need for
force and the amount of force applied;
 (4) the threat, if any, reasonably perceived
by responsible corrections officers; and
 (5) any efforts made to temper the
severity of a forceful response.

28.  Pretrial Detainees
 Substantive Due Process Evaluation
 Different depending on federal court, the
starting point might be different
 In handcuffs
 In police vehicle during transport
 In temporary holding facility
 At arrangement

29. USE OF FORCE POLICY
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30.  Shall ensure that officers use non-force
techniques to effect compliance with
police orders whenever feasible;
 Use physical force only when necessary;
 Use physical force in a manner that
avoids unnecessary injury to officers and
civilians; and
 De-escalate the physical use of force at
the earliest possible moment.

31.  Uses of force, regardless of the type of force or
weapon used, shall abide by the following
requirements:
 officers shall use advisements, warnings, and
verbal persuasion, when possible, before
resorting to physical force;
 physical force shall be de-escalated
immediately as resistance decreases;
 Officers shall allow individuals time to submit
to arrest before physical force is used
wherever possible;

32.  officers shall allow individuals time to submit to
arrest before physical force is used wherever
possible;
 officers shall not use neck holds or a strike to
the head with a hard object, except where lethal
force is authorized;
 using physical force against persons in
handcuffs is prohibited except in emergencies in
which a reasonable officer would believe that
bodily harm to another person or persons is
imminent;

33.  The comprehensive use of force policy
shall include all force techniques,
technologies, and weapons, both lethal
and less-lethal, that are available to
officers.
 The comprehensive use of force policy
shall clearly define and describe each
force option and the circumstances under
which use of such force is appropriate

34.  Force: Any physical strike or instrumental contact
with a person, any intentional attempted physical
strike or instrumental contact that does not take
effect or any significant physical contact that
restricts the movement of a person.
 The term includes the discharge of a firearm,
pointing a firearm in the direction of a human being,
use of chemical spray, chokeholds or hard hands;
taking of a subject to the ground; or the deployment
of a canine. The term does not include escorting or
handcuffing a person with no resistance.
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35.  De-escalate the physical use of force at the
earliest possible moment.
 Physical force shall be de-escalated
immediately as resistance decreases;
 Officers will use disengagement, area
containment, surveillance, waiting out a subject,
summoning reinforcements, and/or calling in
specialized units, when possible, in order to
reduce the need for physical force and increase
officer and civilian safety;

36.  When tactically feasible, an officer will
identify him/herself as a police officer and
issue verbal commands and warnings
prior to the use of force.
 When feasible, an officer will allow the
subject an opportunity to comply with the
officer’s verbal commands.

37.  A verbal warning is not required in
circumstances where the officer has to
make a split second decision, or if the
officer reasonably believes that issuing the
warning would place the safety of the
officer or others in jeopardy.

38.  De-escalation: A decrease in the
severity of force used in an incident in
direct response to a decrease in the level
of resistance.
 Actively Resisting: When a subject
makes physically evasive movements to
interfere with an officer’s attempt to
control that subject; including bracing,
tensing, pulling away, or pushing.

39.  Immediate - occurring or accomplished
without delay; instant
 Imminent - likely to occur at any moment;
impending:

40.  Warning Shots Prohibited
 Shooting at or from Moving Vehicles
 Risk to Innocent Bystanders
 Drawing and Brandishing Weapons
 Use of Firearm to Destroy Animals
 Use of Department Weapons for Training
and Other Purposes
 Use of Firearms While Under the
Influence of Alcohol and/or Drugs

41.  Officers shall only use weapons and
control techniques that are issued and/or
approved for use by the Department.
 Officers shall not carry any less lethal
weapons, or employ any less lethal
techniques, prior to successfully
completing the relevant approved training
for each weapon or technique.

42.  Officers shall not possess or use unauthorized
firearms or ammunition, or obtain service
ammunition from any source
 Officers shall not fire at or from a moving
vehicle, unless use of lethal force is justified by
something other than the threat from the moving
vehicle; shall not intentionally place themselves
in the path of or reach inside a moving vehicle;
and where possible shall attempt to move out of
the path of a moving vehicle before discharging
their weapon.

43.  www.aele.org
 Seminars
 Library
 www.IPICD.org
 Excited Delirium/ Use of Force Training
 www.forcescience.org
 Training
 Research

44. www.DaigleLawGroup.com