Use Of Force NAC 289.160

1. Use Of Force NAC 289.160 1

2. Goal • The student will become proficient in the knowledge and application of the legal, ethical and moral considerations when authorized force is used up to and including deadly force. 2

3. Performance Objective • Upon completion the student will be able to pass a written test at 80% on the following: • A. Discuss reasonable force as stated by law • B. Discuss the components of the Fourth Amendment standard for determining objective reasonableness as determined by the U.S. Supreme Court • C. Explain the legal framework establishing a peace officer’s authority during a legal arrest, to include: • 1. A subject’s requirement to submit to arrest without resistance • 2. Peace officer’s authority to use reasonable force during a detention or arrest 3

4. Performance Objective • D. Identify the circumstances set forth in the NRS when a peace officer has the authority to use force • E. Identify that the objective of using force is to overcome resistance to gain control of an individual and the situation • F. Recognize force options and the amount of force peace officers may use based on the subject’s resistance • G. Explain the importance of training and ongoing practice when responding to potentially dangerous situations that may require the use of force • H. Discuss the importance of effective communication when using force 3

5. Performance Objective • D. Identify the circumstances set forth in the NRS when a peace officer has the authority to use force • E. Identify that the objective of using force is to overcome resistance to gain control of an individual and the situation • F. Recognize force options and the amount of force peace officers may use based on the subject’s resistance • G. Explain the importance of training and ongoing practice when responding to potentially dangerous situations that may require the use of force • H. Discuss the importance of effective communication when using force 3

6. Performance Objective • I. Identify the legal standard for the use of deadly force • J. Identify the factors required to establish sufficiency of fear for the use of deadly force • K. Recognize the law regarding justifiable homicide by a public officer and the circumstances under which the homicide is considered justifiable • L. Describe why complete documentation of the use of force is critical to the peace officer and thepeaceofficer’s agency, to include: • 1. Justification for using force • 2. Relevant factors and detail 3

7. Performance Objective • M. Explain an agency’s potential liability associated with the use of unreasonable force • N. Explain the consequences of an officer’s failure to intervene when unreasonable force is used by another peace officer 3

8. Introduction • The Use of Force is sadly a reality that Officers have to deal with. The Use of Force is something we have to be prepared for at any point and time during the course of our duties. • With that stated, the Use of Force should be avoided and the choice for an Officer to use force is made by the inmate. The inmates’ choices determine the action of an Officer. • The use of Interpersonal Communications, De-escalation, and Crisis Intervention should be at the forefront of an Officers mind however, becoming complacent is not an option.

9. What is Force? • Force - Any violence, compulsion, or constraint physically exerted by any means upon or against a person. • Reasonable Force - Lawful force that is reasonably necessary to accomplish a particular end. 11

10. Reasonable Force -Authority • Freeman v. Gore (5th Cir. 2007) • Police officers are granted the authority to use force to accomplish lawful objectives, such as arrest, entry to serve a warrant or make an arrest, and detention.

11. Use of Force - Standards • Graham v. Conner, 490 U.S. 386 (1989) • This is a landmark case, the Supreme Court established 3 questions that establish the lawfulness of a Use of Force. • What was the severity of the crime the Officer believed the suspect to have committed or be committing? • Did the suspect present an immediate threat to the safety of Officer or the public? • Was the suspect actively resisting arrest or attempting to escape?

12. Use of Force - Standards • In Graham the Court continued.. • The Supreme Court cautioned courts examining excessive force claims that "the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments–in circumstances that are tense, uncertain, and rapidly evolving–about the amount of force that is necessary in a particular situation."

13. Use of Force - Standards • In Graham the Court continued.. • that the use of force should be measured by what the officer knew at the scene, not by the "20/20 vision of hindsight" by a Monday-morning quarterback. In sum, the Court fashioned a realistically generous test for use of force lawsuits.

14. Use of Force - Standards • Various Courts have expanded on what was established by Graham. • When officers are outnumbered or confronted with particularly powerful suspects, additional force may be justified. Sharrar v. Felsing (3rd Cir. 1997) • Courts may also consider the immediate availability of less-lethal tools. Tom v. Voida, (7th Cir. 1992). • An officer or agency cannot be held liable for the agency’s failure to purchase and deploy a particular less-lethal technology. Estate of Smith v. Silvas, (D. Colo. 2006). • The suspect’s history of mental illness, or level of impairment from alcohol or drugs, also contributes to the analysis of the threat posed by the suspect. Krueger v. Fuhr (8th Cir.)

15. Use of Force - Standards • Objective Reasonableness – Fourth Amendment • In Graham four components are used to establish reasonableness. • The standard is objective reasonableness • Judged from the perspective of a reasonable officer in a similar situation, not based on an outsiders perspective with 20/20 hindsight. • Reasonableness judged by an officer with similar training and experience. • Does not have to be the same decision another officer would make. But a reasonable option.

16. Peace Officers Authority • Legal Arrest- • Once a subject has knowledge or should have knowledge that they are being arrested, they must submit to restraints and it is their duty to refrain from using force or any weapon to resist arrest. • A peace officer may use force to effect an arrest, prevent escape and to overcome resistance. • The force must be reasonable and only the amount necessary to overcome resistance and to maintain or gain control.

17. Peace Officers Authority • To use force- • The defendant must not be subjected to any more restraint than is necessary for the defendant’s arrest and detention. If the defendant either flees or forcibly resists, the officer may, except as otherwise provided in NRS 171.1455, use all necessary means to effect the arrest. (NRS 171.122)

18. Reasonableness • The ultimate objective in all levels of force in any situation is to maintain control of an individual and therefore the situation. An officer is required to use only that force necessary to overcome resistance and maintain control. The type of force must be reasonable under the circumstances.

19. Force Options – Subjects Resistance • Behavior you can expect from a person… • Cooperative (No Resistance) • This person submits to the restraints without resisting in anyway. • Passive Resistance • This person does not respond to commands but offers no form of physical resistance • Actively Resisting • This person pulls away, runs away, physically resists (tightens) • Force Options: Strength to take physical control, Control techniques, Less-Lethal.

20. Force Options – Subjects Resistance • Behavior you can expect from a person… • Assaultive • This person is aggressive or combative, attempting or threatening to assault. • Force Options: Control Techniques, Less-Lethal. • Life-Threatening • This person has taken any action likely to result in serious injury or the possibility of death to the Officer or another person. • Force Option: Firearm or any other available weapon or action in the defense of self or others.

21. Confrontational Factors Officer-Subject Factors Age Sex Size Skill Level Multiple OfficersSpecial Circumstances Multiple Subjects Close Proximity to Firearm Relative Strength Special Knowledge Special ability Injury or exhaustion Ground Disability Imminent Danger/Jeopard Distance from subject Availability of other options 45

22. Training and On-Going Practice • Court Cases and the Nevada Administrative Code requires continuing education to maintain proficiency. • You will receive yearly: Use of Force review, Defensive Tactics training, Less-Lethal training, and at least a Range Qualification twice a year (NAC 289.230) • These skills have to be practiced. These skills may keep you and fellow officer alive.

23. Communication • Ultimately the goal of any Officer should be to avoid the Use of Force. • It is incumbent on all of our staff to take the time (if available) to talk with a person and gain their voluntary compliance. • This little bit of time could prevent a larger situation from developing • This investment in communication could prevent injury to the inmate, but also to the officer. The injury could end up costing an office their career at minimum will cost the agency a workers compensation claim.

24. Use of Deadly Force - Standard • Tennessee v. Garner (Supreme Court 1985) • Established todays legal standard in the application of deadly force. • The officer must articulate a reasonable fear of imminent jeopardy of great bodily harm or death to the officer or others • That fear must be sufficient to excite the fears of a reasonable person in a like circumstance. The officer must not act under the influence of fear alone. There must be some overt act apart from the officer’s fear. Use of lethal force must be made to save one’s life or another from great bodily injury or death.

25. Use of Deadly Force - Standard • Tennessee v. Garner (Supreme Court 1985) • Four Part Legal Standard • Life threatening escape- where an officer has probable cause to believe a suspect poses a threat of serious physical harm to the officer or others. • Life-threatening felony- Suspect threatens the officer with weapon or there is probable cause to believe that he has committed a crime involving the infliction of serious bodily injury • The officer must give warning (of some sort) prior to the use of lethal force (where feasible) • If necessary to prevent escape- for lethal force to be constitutionally permissible, there must be probable cause to believe that the use of force is reasonably necessary

26. Justifiable Homicide • NRS 200.120 • Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of an occupied habitation, an occupied motor vehicle or a person, against one who manifestly intends or endeavors to commit a crime of violence, or against any person or persons who manifestly intend and endeavor, in a violent, riotous, tumultuous or surreptitious manner to enter the occupied habitation or occupied motor vehicle, of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein.

27. Justifiable Homicide • NRS 200.120 • A person is not required to retreat before using deadly force as provided in subsection 1 if the person: • Is not the original aggressor. • Has a right to be present at the location where deadly force is used. • Is not actively engaged in conduct in furtherance of criminal activity at the time deadly force is used.

28. Justifiable Homicide by Officer • NRS 200.140  Justifiable homicide by public officer.  Homicide is justifiable when committed by a public officer, or person acting under the command and in the aid of the public officer, in the following cases: • 1. In obedience to the judgment of a competent court. • 2. When necessary to overcome actual resistance to the execution of the legal process, mandate or order of a court or officer, or in the discharge of a legal duty. • 3. When necessary: (a) In retaking an escaped or rescued prisoner who has been committed, arrested for, or convicted of a felony; (b) In attempting, by lawful ways or means, to apprehend or arrest a person; (c) In lawfully suppressing a riot or preserving the peace; or (d) In protecting against an imminent threat to the life of a person

29. Documentation • Objective Reasonableness is a fact based analysis • The facts that led to the decision to use force and the type of force used. • Write your report as soon as possible. • Write what you did and why • Write what led up to the encounter • How you got there • What you heard and witnessed • Verbal Orders • Subject-Officer Factors • Include what happened after the incident, medical attention, double locked wrist restraints, etc.

30. Excessive Force • Constitutional • The Eighth Amendment (Amendment VIII) to the United States Constitution is the part of the United States Bill of Rights prohibiting the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments, including torture. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual Punishment Clause applies to the states.

31. Excessive Force • Federal- • Title 18 United States Code Deprivation of Rights Under the Color of Law • This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S. • Punishment varies from a fine or imprisonment or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined.

32. Excessive Force • State- • In keeping with the policy of the Department of Corrections prohibiting the use of excessive force, NRS 212.020 – “Inhumanity to Prisoners,” is noted as follows:

33. Excessive Force • State- • Every jailer or person who shall be guilty of willful inhumanity or oppression to any prisoner under his care or custody shall be punished: • 1) Where the prisoner suffers substantial bodily harm for such inhumanity or oppression, by imprisonment in the state Prison for not less than one year nor more than six years or by a fine of not more than $5,000.00 or both fine and imprisonment • 2) Where no substantial bodily harm results, a gross misdemeanor. • Whether or not the prisoner suffers substantial bodily harm, any public officer guilty of such willful inhumanity is guilty of a maleficence of office.

34. Excessive Force • Agency- • Internal Investigation • Administrative Leave • Termination • Loss of Peace Officer Status • Prosecution - Criminal • Civil Law Suit

35. Failing to Act • Under the US Constitution, an officer who fails to intervene in the application of unreasonable use of force, that officer may be held to the same level of liability as the officer applying the unreasonable use of force. This could result in criminal charges, Civil Rights violations, civil suits, loss of job, and deprivation under color of the law (civil and criminal).

36. Use of Force • Any Questions?