This is a general review of NOPD policies on the use of force. The Department should be providing use of force training and nothing contained herein should be considered to supplant any information provided in official training. In fact, if anyone notes something in this article which is contrary to what is being taught in training, please let me know.
Chapter 1.3, titled Use of Force, will be effective on August 9, 2015 and will replace Policy/Procedure 300.
Officers must have a working knowledge of what constitutes Active Resistance. The definition of Active Resistance is resistance exhibited by a suspect that is between Passive Resistance and Aggressive Resistance. The definition lists as examples: attempts to leave the scene, flee, hide from detection, or pull away from the officer’s grasp. It goes on to say verbal statements, bracing, or tensing alone do not constitute Active Resistance.
It is important to note, that flight, or an attempting to flee, will constitute active resistance and will therefore be a reportable use of force. In addition, offices should assume that any time a suspect is charged with resisting arrest, a use of force report and/or force statements should be written. Make sure to notify your supervisor. If you are a supervisor, you should err on the side of caution.
The updated policy includes two new categories of resistance, Aggravated Resistance and Aggressive Resistance.
Aggravated Resistance will include circumstances where there is an objectively reasonable perception on the part of the officer that the officer’s or another person’s life is subject to eminent threat or that the suspect’s actions could cause serious physical injury.
Aggressive Resistance will be resistance which is more than active resistance and includes physical attacks on the officers such as punching, kicking, or use of a weapon. Aggressive resistance does not include active resistance, but could rise to the level of being aggravated resistance.
Passive resistance is going to be a behavior that is unresponsive to police verbal communication or direction. For example ignoring or disregarding verbal commands, going limp, or refusing to physically respond or move. Actions commonly used by protesters, such as linking arms, bracing, or tensing, will be passive resistance and will not constitute active resistance. Therefore, no use of force will be authorized except strategies specifically devised to deal with those types of problems.
Officers should be aware that neck holds are considered lethal force. Neck holds will be treated as a serious use of force and must be reported to a supervisor, even if it is accidental or only occurs for a second.
The policy defines Reportable Use of Force as any force above hand control or escort techniques applied for the purpose of handcuffing, or escort techniques that are not used as pressure point compliance techniques, do not result in injury or complaint of injury, and are not used to overcome resistance. The pointing of a firearm or CEW laser at a subject is a reportable use of force. So, if an officer instructs a suspect to place his hands on top of his head, and the suspect complies, the officer can take the suspect’s hands from the top of his head and put them behind the suspect’s back for handcuffing without creating a reportable use of force, as long as the suspect doesn’t resist. It is also not a reportable use of force if an officer helps a handcuffed suspect maintain stability while walking down stairs, or walking to a car, or something like that, as long as the suspect does not resist and the officer is not attempting to use pressure point compliance techniques.
Officers should also have a good working knowledge of the various use of force levels.
A Level 1 use of force includes
unholstering a firearm in the KNOWN presence of a person other than another law enforcement officer or department member, pointing a firearm or CEW at a person, and hand control or escort techniques applied as pressure point compliance techniques or that result in injury or complaint of injury.
It is important to note that this is not an exclusive list of actions which constitute a Level 1 use of force. There are certainly other actions which constitute a Level 1 use of force. Vehicle pursuits are probably a reportable Level 1 use of force as long as nobody is injured. As discussed below, if injuries result, it will be a Level 4 use of force.
It is also important to note that there is a change in the policy insofar as merely unholstering a firearm in the known presence of a citizen will constitute a Level 1 use of force. The officer must know that a member of the public is present, but does not require that the firearm be pointed at anyone. This provision was removed prior to the effective date.
A Level 2 use of force includes the use of a TASER, the use of an impact weapon where no contact is made, the use of a baton for nonstriking purposes, and any weaponless defense techniques. Weaponless defense techniques will include elbow strikes, kicks, leg sweeps, and takedowns. Again, officers should note the use of the words “will include.” “Will include” indicates that it is not an exclusive list.
A Level 3 use of force includes any strike to the head, the use of impact weapons where contact is made, regardless of injury, or the destruction of an animal. Officers should note that there are some qualifications in this definition. For example, a Level 3 use of force includes any strike to the head as long as that strike was not made with an impact weapon, and likewise, includes any strike with an impact weapon were contact is made unless that contact is made to the head.
A Level 4 use of force is considered a serious use of force and includes any lethal force used by an NOPD officer, all critical firearm discharges by an NOPD officer, all uses of force by an NOPD officer resulting in serious physical injury or requiring hospitalization, all neck holds, all uses of force by an NOPD officer resulting in loss of consciousness, all canine bites, more than two applications of a TASER on an individual during a single interaction, or TASER application for longer than 15 seconds whether continuous or consecutive, any strike, blow, kick, TASER application, or similar use of force against a handcuffed subject, and any vehicle pursuit resulting in death, serious physical injury, or injuries requiring hospitalization. What is not on that list, but can be deduced from the prior definitions, is that any strike to the head with an impact weapon will also be considered a serious use of force, and therefore, fall under Level 4.
Officers should familiarize themselves with all aspects of the use of force policy. Officers should also be very familiar with the US Supreme Court case of Graham v. Connor. Graham v. Connor includes the guidelines by which courts will analyze the reasonableness of any force used by a police officer.
Finally, I want to note the actions which are deemed prohibited. These actions are neck holds, head, neck, throat, heart, kidney, and groin strikes with impact weapons, shooting at or from moving vehicles, shooting through a door or window, warning shots, using a firearm as an impact weapon, force against persons in handcuffs, and use of force to overcome passive resistance. Of course, there could be circumstances which would justify the occurrence of any of these prohibited actions. But, offices should avoid the listed actions unless it is clearly a life or death situation and it appears to be the only option available.
This concludes the review of NOPD Chapter 1.3. Next up – Chapter 1.3.6, Reporting Use of Force.