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Use of Force During a Medical Emergency: A New Standard from the Sixth Circuit

By: Tami Z. Hannon & Curtis M. Graham

Earlier this year the Sixth Circuit had occasion to address what standard applies to use of force claims in the context of a medical emergency. In Estate of Hill by Hill v. Miracle, 853 F.3d 306 (6th Cir. 2017) a diabetic person filed a 42 U.S.C. § 1983 claim against a law enforcement officer after a taser was used against the plaintiff while he was experiencing a hypoglycemic episode. The plaintiff was agitated toward the responding officer and medical personnel for attempting to treat him and was acting combative and confused. The officer eventually deployed his taser when the plaintiff continued to kick and swing at the paramedics.

The plaintiff alleged that the officer’s decision to use the taser constituted excessive force in violation of his Fourth Amendment rights. He also asserted state law claims of assault, battery and infliction of emotional distress. The officer moved for summary judgment on qualified immunity grounds. This motion was denied by the District Court and the officer then appealed to the Sixth Circuit.

The importance of Miracle is that the Court moved away from the use of force test provided for in Graham v. Connor, 490 U.S. 386 (1989). In Graham, the Supreme Court used a three-factor test to assess the objective reasonableness of an officer’s use of force. Those factors were: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight.

The Miracle Court stated that applying the Graham factors to a medical emergency situation “is equivalent to a baseball player entering the batter’s box with two strikes already against him.” Specifically, because the plaintiff in Miracle had not committed a crime and was not resisting arrest, two of the three Graham factors automatically weighed against the officer. Instead, the Court announced that when the person in question has not committed a crime, is not resisting arrest and is not directly threatening the officer, the court should ask:

(1) Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others?

(2) Was some degree of force reasonably necessary to minimize the immediate threat?

(3) Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)?

If the answers to the first two questions are “yes,” and the answer to the third question is “no,” then the officer is entitled to qualified immunity. Turning to the facts of the case at hand, the Court found the plaintiff was experiencing a medical emergency and was not able to make rational decisions due to his condition. Additionally, the officer and paramedics were put in immediate physical danger by the plaintiff’s combative actions and the plaintiff himself would have been in grave danger had the officer done nothing. Finally, the Court found the force used was reasonably necessary due to the fact that four paramedics had been unable to restrain the plaintiff.

The new factors announced in Miracle allow courts to more appropriately evaluate the reasonableness of officers’ actions in light of the (often unpredictable) circumstances they find themselves in. Law enforcement officers should take note of this important decision involving qualified immunity and keep these principles in mind when they are confronted with situations involving medical emergencies. Additionally, departments would be well served to educate their officers on these factors and possibly revise their policies and procedures in light of this notable decision (particularly those relating to officers’ response to aggression). This may require additional training on recognizing medical emergencies. When it comes to minimizing liability exposure, understanding how a court will assess similar cases in the future is a key to success.


Tami Hannon (thannon@mrrlaw.com) is a Partner in MRR’s Cleveland Office and Curt Graham (cgraham@mrrlaw.com) is an Associate in MRR’s Lexington Office. For more info, please  contact MRR via email or call 440.248.7906.


 

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.


 

Law Enforcement Blog: Use of Force Policies and Procedures: Lessons from the Big Apple

By: Christina L. Vessels, Esq.

Last October, the Office of the Inspector General for the New York Police Department published a Report entitled “Police Use of Force in New York City: Findings and Recommendations on NYPD’s Policies and Practices.” The Report focuses on five aspects of use of force within the NYPD: (1) trends; (2) reporting; (3) de-escalation; (4) training; and (5) discipline.

There are several significant findings in this 62-page Report. Perhaps most notable is the Report’s conclusion that “NYPD’s current use-of-force policy is vague and imprecise, providing little guidance to individual officers on what actions constitute force.” The OIG’s recommendation is for NYPD to adopt a more precise use-of-force Patrol Guide procedure that includes greater clarity on what is meant by “force,” “excessive force,” and “deadly force.”

The Report also states that NYPD’s current procedure for documenting and reporting force incidents needs improvement. There is currently no centralized, uniform use-of-force reporting mechanism, and there are problems with the way officers are describing incidents of force after they occur. NYPD officers often fail to use sufficiently descriptive language that properly captures the specifics of an encounter. The Report suggests the creation of a new reporting form in which officers articulate the type, nature, and seriousness of resistance exhibited by the citizen that preceded and necessitated the use of force. Officers are also urged to reference whether other officers used force and the timing of the use of force.

These are just some highlights. You can find the Report in its entirety here: http://www.nyc.gov/html/oignypd/assets/downloads/pdf/oig_nypd_use_of_force_report_-_oct_1_2015.pdf

If an independent agency were to closely examine your Department’s use-of-force policy, what conclusions would it draw? How can your policy be improved?


For questions or more information on “Use of Force Policies and Procedures: Lessons from the Big Apple,” contact:

Christina L. Vessels  – MRR Lexington
Phone: 859.899.8515
Fax: 859.899.8498
Email: cvessels@mrrlaw.com