CRJ325 - WEEK 4 - DISCUSSION 4

"Arrests and Use of Force"

Go to the PoliceChief’s Website and read the article titled, “Chief's Counsel: Police Use of Force: The Problem of Passive Resistance” located at http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=563&issue_id=42005. Recommend the two (2) most import factors you believe law enforcement officers should consider when using force in instances that individuals are passively resisting. Provide a rationale for your response.

In the deciding of the level of force, nondeadly or deadly, to be used the Constitution of the United States as particularly relating to the due process clause of the 14th Amendment, state laws which is usually the penal code or code of criminal procedure, defines when an office may or may not legally use force, judicial decision which assist in the deciding of what type of force can be used and when and lastly departmental or agency rules or guidelines.

Based upon these guidelines two important factors that law enforcement should consider when the need for the level of force may be evaluated when individuals are passively resisting pertain first to determining if the active state of being passive can be changed and become aggressive or deadly.

Passive resistance is described as when the subject is not complying with an officer’s command and is uncooperative but is effectively using minimum physical action to prevent an officer from placing them in custody, securing them and placing them in the squad car.

Steps in dealing with passive resistance include as follows:

1. Principle of mass – 2:1 ratio of officers to arrestee
2. Control Hold (rear wrist lock)
3. Physically placing arrestee in squad car with handcuffs
4. Pepper spray – although still under debate but may be used

Due to the nature of passive resistance ability to change it moves the level of force and increases the variables in dealing with party to be arrested. As such the use of force is a last resort as well as the appropriate choice to utilize. Therefore, an involved officer(s) will determine if there is an imminent threat and whether a low level force should be applied or if it should be raised to intermediate force of if non-deadly force will be sufficient to control the situation which is equitable to reasonable force.

Purpose of Choice

Reasonable Force

1. To protect themselves
2. To protect others
3. To affect a lawful detention
4. To affect a lawful arrest
5. To conduct a lawful search

The determining of reasonable force is connected to the Fourth Amendment of the United States Constitution that allows a police officer to use force as is “objectively reasonable” under all of the circumstances. Further, evaluation include the reasonable inquiry in reviewing the use of force is objective and reasonable based on the officer’s perusal of occurring circumstances as follows:

1. Severity of crime or offense
2. Subject threat to officer or others
3. Subject actively resisting arrest or attempting to evade
4. Influence of drugs or alcohol or mental capacity of subject
5. Time available to an officer
6. Availability of officers or resources to defuse and ice the situation down
7. Proximity or access of weapons to subject
8. Environmental factors or other exigent circumstances

If the situation spirals upward and changes from passive to active resistance or even to a level of aggression that may need an alternate level of force three availabilities become optional to deal with a situation that progressed from passive to a danger to self and the officer. As follows are additional levels of resistance and the force to deal with each scenario as follows:

Active Resistance – the subject’s verbal or physical actions are intended to prevent the officer from placing the subject in custody and taking control but are not necessarily directed at harming the officer.

Low Level Force – This entails the level of control necessary to interact with a subject that is compliant or displaying Passive or Active Resistance.

1. Officer Presence
2. Verbal Communication
3. Empty Hand Tactics (Takedowns)
4. Handcuffs/Other LVMPD Approved Restraint Devices
5. Baton (As escort tool)
6. LVNR® (Level One – minimum restraint)
7. K-9 – (No bites)
8. Pinching
9. Blocking

Aggressive Resistance – the subject displays the intent to harm the officer, themselves or another person and prevent the officer from placing them in custody and taking control.

Intermediate Force - This entails the level of force to compel compliance by a subject displaying Aggressive Resistance which is neither likely nor intended to cause death.

1. Empty Hand Tactics (Takedowns with injury, Strikes, Kicks)
2. Baton/Impact Weapons (Jabs, Strikes)
3. LVNR® (Level Two – medium restraint; and 3-maximum restraint)
4. OC Spray
5. ECD
6. Low Lethality Shotgun (five yards or greater)
7. K-9 – (with bites)
8. P.I.T. (Speeds 40 mph or below)

Aggravated Aggressive Resistance – the subject’s action reveal a likelihood that death or serious bodily injury will occur for the officer, themselves or another. These acts of harm may result from a firearm, use of blunt or bladed weapon, and extreme physical force.

Deadly Force – This level of force is the degree of force which is likely to produce death or serious bodily injury. This type of force can also result if used inappropriately or improperly applied in death and is not limited to the use of firearms.

1. Baton/Impact Weapons (Jabs, Strikes)
2. Low Lethality Shotgun (fired at a distance less than five yards)
3. P.I.T. (More than 40mph
4. Ramming
5. Firearm Use

In relation to the parameters for the use of Deadly Force an officer may use this type of force upon another person when it is objectively reasonable to protect himself or others from what is reasonably believed to be an imminent threat of death or serious bodily injury. Prevent the escape of a fleeing felon who the officer has probable cause to believe has committed a violent felonious crime and is an imminent threat to human life if escape should occur.

There are four elements of Deadly Force as follows:

1. Ability – This exists when a person has the means or capability to cause grave injury, serious bodily harm or death to an officer or another.

2. Opportunity – This exist when a person is in a position to effectively resist an officer’s control or to use force or violence upon the officer or another.

3. Imminent Jeopardy – Upon the factual nature and circumstances confronting the officer, the officer reasonably believes the subject poses an imminent danger to the life or the officer(s) or other third parties and the officer must act immediately to prevent death or serious bodily injury.

4. Preclusion – Based upon all other lesser alternatives have been reasonably considered and exhausted prior to the use of deadly force, to include disengagement. As such deadly force in response to the subject’s action must remain reasonable while based upon the totality of the circumstances known to the officer as the time force was applied.

Analyze the interrogation and questioning process that law enforcement officers can conduct after a justifiable arrest. In your own opinion, determine whether or not you believe these processes restrain officials from obtaining information related to crimes, please include in your thoughts how the Miranda rights relate to your ideas. Justify your answer.

The interrogation and questioning process is an intriguing and relative complexity due to the fact that it is reflectively challenging to obtain correct details, reliable testimony or confession, good rapport and the trust of the subject to be interrogated and questioned.

Prior to the interrogation and questioning the subject must undergo the arrest phase which summarily include four elements of arrest as follows:

• Seizure and detention

• Intention to arrest

• Arrest authority

• The understanding of the individual
that he or she is being arrested.

A suspect is in custody in two situations:

1. When the suspect is under arrest or
2. When the suspect is not under arrest but is “deprived of freedom in a significant way.”

The suspect(s) has four constitutional rights during this process as follows known as the 4 R’s:

• Right to counsel

• Right to due process

• Right to protection against unreasonable searches and seizures

• Right to protection against self-incrimination

• Note: Rights to counsel and due process apply in lineups, showups, and photographic identification, but the rights to protection against unreasonable searches and seizures and self-incrimination do not.

Prior to either the custodial interrogation or questioning stage is the required given Miranda Warning (four warnings) which provides protection for the suspect or accused as well as the police officer as follows:

• You have a right to remain silent.

• Anything you say can be used against you in a court of law.

• You have a right to the presence of an attorney.

• If you cannot afford an attorney, one will be appointed for you prior to questioning.

• Almost all law enforcement departments in the United States add a fifth warning which is not required: “You have the right to terminate this interview at any time.”

The right to waive these rights is available as follows:

“After… warnings have been given, and such opportunity [to exercise these rights] afforded him or her, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement.

Questioning Phase

This is the stage wherein the questioning of a perk (suspicious party or subject) is allowable but does not require the reading of the Miranda Rights because it is a primarily stage which may be founded on probable cause or reasonable suspicion.

But if the need to question regarding an acknowledged crime has been done and it is relatively documented then the reading of the Miranda Rights must be done based upon the Fourth Amendment that protects individual rights as well as the police officer.

Interrogation Phase

This is the stage wherein the interrogation is done at the station and is in fact a custodial interrogation that is held in the station but the interrogator must inform the subject(s) of his rights prior to any intensive questioning that may self-incriminate or violate his right due to lack of counsel. In order to protect the subject and officers the recording of these custodial interviews protects all by the disallowing of charges of misconduct, intimidation and intentional play against the subject in custody as follows:

• Protects against baseless charges of improper police conduct.

• This makes it easier for some suspects to confess, because many of them find it easier to admit verbally to committing a crime, rather than writing out or signing a written confession.

• This deters charges of improper police conduct during custodial interviews.

• These recordings increase public trust in police conduct because they show that the police have nothing to hide.

Both the questioning and interrogation phases help therein in the policing activity by allowing respect for the subject as well as the act of fairness because the methodology is not based on an act of entrapment but on the quest for the truth. In that quest is for facts and the ascertaining of whether the subject is indeed an active ingredient in the crime and as such a suspect. With that thought in mind this controls discriminatory actions, racial profiling and racial pick for any crime in the area by police officers and the active way information is garnered, probed for and sought due to the adhering of the Miranda rights and the controlled nature of the custodial questioning and interrogating.

Thank you.

Felicia


References:

The Las Vegas Metropolitan Police Department

6/002.00 USE OF FORCE A.S. 1.2.2, 1.2.7, 1.3.1 through 1.3.8

http://www.norton-ramirezlaw.com/police-vs-resisters-proper-type-force/
http://www.norton-ramirezlaw.com/examining-police-interrogation-techniques-defining-interrogation-2/
http://www.worldcat.org/title/passive-resister-response-what-is-considered-reasonable-use-of-force-in-police-encounters-with-passive-resisters/oclc/858815523
http://www.policemag.com/photogallery/photos/231/handling-passive-resisters.aspx
Carmen, R.V. D. (2014). Criminal Procedure: Law and Practice, 9th Edition. [Strayer University Bookshelf]. Retrieved from https://strayer.vitalsource.com/#/books/9781305840799/

RESPONSE TO CO-STUDENT

I agree that the level of force is a danger as well as a parallel to hostility toward civilians. One reason I believe that punitive force can surface is because of the quickness of change from passive to active and then aggressive and ultimately dangerous resistance. Sometimes due to the escalation and danger to the officer they have no choice but to react to changing territory that can be actively become quicksand in a second and death to the officer.

These scenarios are active and uncontrolled, unpredictable and high acceleration rides of hate for the law, officer and sometimes a death trap for all. They have to react, judge and gauge as with the blinking of an eye. There is no time to debate they are there by themselves! Call it as it goes!

Thank you.

Felicia