Use of Force on Non-Violent Resistors
One of the most difficult decisions a police officer must make is whether to use force on an individual. That decision becomes even more difficult when an officer confronts an individual in the midst of a mental health emergency. Consideration of the affected individual’s safety, and the safety of the rest of the public, must inform an officer’s response. Admittedly, federal courts of appeal throughout the United States have largely failed to announce a cohesive rule that guides officers’ response to mental health emergencies. A recent case decided by the Fourth Circuit Court of Appeals, Estate of Ronald A. Armstrong v. Village of Pinehurst, provides helpful guidance for officers regarding the appropriate use of force in response to mental health emergencies and non-violent resistors.
In Armstrong, Jinia Armstrong Lopez convinced her brother, Ronald A. Armstrong, to go to the hospital after he exhibited erratic behavior. Mr. Armstrong suffered from bipolar disorder and schizophrenia. Shortly after his arrival, Armstrong left the hospital and walked in a nearby road with oncoming traffic. Armstrong’s examining physician issued involuntary commitment papers and three police officers went to collect Armstrong. As soon as the officers received notice that Armstrong’s commitment papers were finalized, they surrounded him. Armstrong wrapped himself around a stop sign post and the officers could not remove him. Just thirty seconds after telling Armstrong about his involuntary commitment, one of the officers was told to tase Armstrong. The officer tased Armstrong five times in “drive stun mode,” which only increased his resistance to the officers’ demands that he let go and return to the hospital. The officers ultimately pinned Armstrong to the ground, cuffed him, and shackled him. Armstrong was unresponsive and stopped breathing. He passed away shortly thereafter.
Armstrong’s estate brought suit against the Village of Pinehurst, the three officers tasked with returning Armstrong to the hospital, and the manufacturer of the taser. The District Court for the Middle District of North Carolina determined that it was unlikely a constitutional violation occurred and the officers were entitled to qualified immunity and summary judgment. On appeal, the Fourth Circuit determined that Armstrong’s “right not to be tased while offering stationary and non-violent resistance to a lawful seizure was not clearly established on April 23, 2011,” the date the officers apprehended Armstrong. This determination was largely in response to case law from the Sixth Circuit that arguably supported the officers’ use of force. The officers were entitled to qualified immunity even though the court determined they used excessive force.
In its decision, the Fourth Circuit set out “to clarify when taser use amounts to excessive force in, at least, some circumstances.” Tasers are intended to cause pain and immobilize an arrestee. Police officers should only use a taser when “confronted with an exigency that creates an immediate safety risk and that is reasonably likely to be cured by using the taser.” The court’s decision made several important points:
- An arrestee does not create an “immediate safety risk” when he or she resists officers and “physically prevent[s] an officer’s manipulation of his body.”
- “Erratic behavior and mental illness do not necessarily create a safety risk.”
- Officers have a diminished interest in using “potentially harmful force” when trying to stop a mentally ill individual from harming himself or herself.
While the court granted the officers in Armstrong qualified immunity, it determined that police officers use excessive force where they outnumber a mentally ill person and tase him when he is potentially a danger to himself while remaining stationary and engaging in non-violent resistance. While the Fourth Circuit’s decision is not controlling in Ohio, officers within the Sixth Circuit should apply the rationale adopted by the Fourth Circuit to avoid potential violations of arrestees’ constitutional rights. Officers should reserve the use of potentially harmful forces, like tasers, pepper spray, and batons for individuals who are actively dangerous and pose a threat to themselves, officers, and/or the public. Use on a stationary and non-violent individual, even when he or she is arguably resisting, should be avoided as it risks violation of the individual’s constitutional rights.