USE OF FORCE by Prepared-schools.com by Ron Woodruff M.Ed

With all of the issues regarding Use of Force throughout the United States and our schools in particular I thought I would publish one of my training modules for your review. Please feel free to e-mail me your comments to: [email protected]. You may also preview the other training modules at www.Prepared-schools.com

This module explores relevant U.S. Supreme Court decisions surrounding the use of force and physical restraint in a security role context. A use of force continuum of escalating response and reporting requirements along with model policy guidelines are included as a ready-reference guide. Although the court cases cited deal with police use of force, the rationale applies to school security staff as well.

USE OF FORCE

Properly applying use of force in schools

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Use of Force

The use of force and restraint is a critical and crucial issue for schools. If safety is at risk, school personnel need to subdue that risk to prevent harm. There is also a liability for schools in the area of use of force and restraint. It is important to provide training for those who make the discipline and security decisions in the school building.

SUPREME COURT RULINGS REGARDING USE OF FORCE

The constitutional constraints on the use of force by law enforcement require reasonableness. The Supreme Court has identified a number of considerations lower courts should look at in determining reasonableness that emphasize looking at the practical circumstances facing the officer who used force. Each case should be evaluated in light of the particular unique facts from the perspective of the officer at the time the decision to use force was made.

The question then becomes, “Was the use of force reasonable and necessary in light of the existing circumstances?”

------------------------------ GRAHM VS. CONNOR (1989) -----------------------------

The case involved an investigative detention of an individual and the use of non-deadly force by the detaining officers that resulted in injury to the detainee. The Court held in Graham that the use of force by law enforcement while making a seizure - to include force used in self-defense or defense of another - is evaluated under the Fourth Amendment. Such conduct, therefore, is analyzed for reasonableness since the Fourth Amendment prohibits “unreasonable searches and seizures.” 

The test of what is reasonable is a common sense evaluation of what an objectively reasonable officer might have done in the same circumstance. The Court held reasonableness is an objective standard viewed from the officer’s perspective. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers often are forced to make split-second judgments - in circumstances that are tense,

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uncertain, and rapidly evolving, the amount of force that is necessary in a particular situation may come under scrutiny. The legal question is whether an objectively reasonable officer could have taken the action in issue. Put another way, an unreasonable use of force is one that no objectively reasonable law enforcement agent would have used.

The Court in Graham vs. Connor made clear that the determination of reasonableness requires a common sense, pragmatic approach from the perspective of an objectively reasonable law enforcement officer. It should be determined whether an officer’s conduct was constitutional. The legal constraints on the use of force by law enforcement are based on practical considerations unique to each circumstance.

In recognizing that an officer’s decision to use force occurs in “circumstances which are tense, uncertain and rapidly evolving,” the Court underscored that law enforcement agents are reacting to a subject’s refusal to voluntarily comply with the law. It is the subject that dictates what use of force, if any, is necessary and reasonable.

The Court in Graham vs. Connor also noted that use of force by police has two distinct justifications. The first is in response to a suspect posing an immediate threat to the safety of the officers or others, and the second is to prevent the escape of a subject.

-------------------------------- KATZ VS. SAUCIER (2001) -------------------------------

The Court in Katz vs. Saucier was extremely pro law enforcement and made clear that in evaluating the use of force by law enforcement great deference must be paid to the risks assumed by law enforcement and strongly reinforced its previous decisions in police use of force cases. The Katz decision is replete with references of deference to law enforcement in both qualified immunity and constitutional contexts. For example: “We set out a test that cautioned against the 20/20 vision of hindsight in favor of deference to the judgment of reasonable officers on the scene.

---------------------------- INGRAHAM VS. WRIGHT (1977) ---------------------------

Reasonable corporal punishment is otherwise recognized as lawful under both federal and state law. Imposition of reasonable corporal punishment does not amount to a per se violation of a student’s due process rights.

In Ingraham vs. Wright, the Court rejected a claim by students who had received a paddling that their Fourteenth Amendment due process rights had been violated. The Court noted that a “single principle has governed the use of corporal punishment since before the American Revolution; Teachers may

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impose reasonable but not excessive force to discipline a child.”

The concept that reasonable corporal punishment in school is justifiable continues to be recognized in the laws of most States…It represents “the balance struck by this country,”…between the child’s interest in personal security and the traditional view that some limited corporal punishment may be necessary in the course of a child’s education. Under that longstanding accommodation of interests, there can be no deprivation of substantive rights as long as disciplinary corporal punishment is within the limits of the common-law privilege. (It is imperative to check with your local and state laws regarding corporal punishment. This modual is not meant to be a substitute for legal counsel.)

First, reasonable and moderate corporal punishment is lawful and does not violate the substantive and procedural due process guarantees of students. Second, excessive and unreasonable corporal punishment is unlawful and does violate the substantive and procedural due process guarantees of students.

As the Court pointed out in Ingraham vs. Wright, there is no due process violation “as long as disciplinary corporal punishment is within the limits of the common-law privilege.” FOURTH CIRCUIT COURT OF APPEALS RULINGS REGARDING USE OF FORCE --------------------------- MCLENAGAN VS. KARNES (1994) --------------------------

In McLenagan v. Karnes, the Fourth Circuit Court of Appeals applied the Graham objective reasonableness standard.

In McLenagan, a police officer shot an individual he perceived to be armed and posing a deadly threat (the individual turned out to be neither armed nor posing a threat). Within moments after shooting the plaintiff, the defendant police officer realized he had shot the wrong person.

In finding the use of force by the officer against the plaintiff to be reasonable, the court noted: “To ascertain whether probable cause existed for the police officer to fire his weapon, we consider the particular circumstances confronting the official at the time of the questioned action…if a reasonable officer possessing the same particularized information as the police officer could have…believed that his conduct was lawful, then the actions of the police officer were reasonable.”

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The Court in McLenagan also addressed the fundamental Fourth Amendment principle that law enforcement officers need not be correct - only reasonable - in their decisions to use force. The Court held: “We will not second-guess the split-second judgment of a trained police officer merely because that judgment turns out to be mistaken, particularly where inaction could have resulted in death or serious injury to the officer and others. Although it is extremely unfortunate that the plaintiff was seriously injured, the law does not purport to redress injuries resulting from reasonable mistakes.

THE FIVE COMPONENTS OF USE OF FORCE

The International Association of Chiefs of Police in its study, Police Use of Force in America 2001 identified five components of force:

Physical Force (use of fists, hands, feet, etc...)

Chemical Force (the discharge of mace, pepper spray, and similar agents)

Electronic Force (the discharge of tasers, stun guns, or other electronic weapons)

Impact Force (use of batons and the like)

Lethal Force (firearm discharge of any kind)

THE FIVE ELEMENTS OF USE OF FORCE

The International Association of Chiefs of Police in its study, Police Use of Force in America 2001 also identified five elements of force:

Weapons (guns, chemical, flashlight)

Weaponless Tactics (grabbing, control-holds, arm twisting, wrestling, pushing)

Restraints (handcuffs, leg cuffs, body cuffs)

Motion (foot, vehicle)

Voice (conversationally, commands, shouting, verbal threats)

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THE USE OF FORCE CONTINUUM

The amount of force used should be proportional to the threat and limited to the least amount required to accomplish legitimate police action. Officers are trained to use force progressively along a continuum, and policy requires that officers use the least amount of force necessary to accomplish their goals.

The continuum of force reflects an escalation from verbal commands to deadly force. The typical force continuum begins with the presence of the officer or with verbal commands and then lists use-of-force options in order of increasing intrusiveness, ending with deadly force.

Usually, accompanying language suggests that officers should consider which force option is appropriate and includes the suggestion of “escalating” their response to a subject with a view toward “de- escalating” the threat posed by the subject.

The continuum also usually contains language that suggests officers consider progressing up or down the force continuum.

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SUMMARY: USE OF FORCE

The legal standard for determining what level of force is appropriate in a given situation is judged in the totality of the circumstances surrounding the incident using a balancing test called the objective reasonableness standard.

In Graham v. Conner, the U.S. Supreme Court identified four factors that the court would consider:

1. The severity of the crime at issue; 2. Whether the suspect posed an immediate threat to the safety of officers or others; 3. Whether the suspect was actively resisting; 4. Whether the suspect is attempting to evade arrest by flight.

In recognizing the split-second decisions that officers are required to make during tense and rapidly evolving situations, the court also held that the reasonableness standard was to be applied at the time of the incident, not hindsight.

REPORTING INCIDENTS

It is important that there is a detailed, written report of any occasion where force is used. It may help prevent any misunderstanding or misrepresentation of the incident, and it will be helpful should there be a complaint.

Immediately following any such incident, the staff members should contact his/her immediate supervisor and initiate a detailed report. The report should include:

? The name(s) of the student(s) involved and when and where the incident took place; ? The names of any other staff or students who witnessed the incident; ? How the incident began and progressed, including details of the student’s behavior, what was said by each of the parties, the steps taken to defuse or calm the situation, the degree of force used, how that force was applied and for how long; ? The student’s response and the outcome of the incident; ? Details of any injury suffered by the student, another student or a member of staff and of any damage to property. ? All reported uses of force should be reviewed promptly and evaluated by a supervisor to determine whether the particular use of force was within school policy guidelines.

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To the extent possible, the review of use of force incidents and use of force reporting should include an examination of the tactics and precipitating events that led to the use of force so that agencies can evaluate whether any revisions to training or practices are necessary.

Districts should consider the following reporting requirements:

? How and when use of force reports will be required; ? Who will review the reports; ? How the reports will be used; ? The retention of the reports; ? Who will have access to the reports; and ? Procedures to be followed if the district’s use of force policy is violated.

MODEL POLICY REQUIREMENTS

The model policy on the use of force and physical restraint must include:

? Strategies for preventing student violence, self-injurious behavior, and suicide, including methods for the verbal and nonverbal de-escalation of potentially dangerous behavior occurring among groups of students or with an individual student; ? Criteria for evaluating student behavior and identifying behavior that may require immediate intervention by means of force or physical restraint; ? A definition of appropriate responses by school personnel to student behavior that requires immediate intervention; ? A description of permitted methods of physical restraint, within the context of a use of force continuum appropriate to a common school environment, and the limited circumstances when such methods may be appropriate. ? An explanation that if deadly force is permitted by local district policy, it should be used only as a last resort in response to a threat of imminent deadly force by a student; ? An identification of the appropriate school personnel who may be authorized to administer force or physical restraint; ? A description of staff training requirements and procedures for parental notification and follow-up, including procedures for receiving and investigating complaints regarding use of force and physical restraint practices; and ? A description of reporting requirements, including the mandatory completion of an incident report form that is uniform throughout the district, the reporting of de-escalation techniques attempted or

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employed before the use of force or physical restraint, the details of the incident, witnesses to the incident, when the report must be filed, and the persons to whom the report must be made.

The model training standards and requirements for the use of force and physical restraint must include:

? Strategies for building positive relationships with and between students; ? Techniques and strategies for the verbal and nonverbal de-escalation of conflict and violence; ? Threat assessment and management techniques; and ? School-based use-of-force continuum that reflect the context of schools.

The model standards and training requirement shall:

? Describe entry-level knowledge and basic minimum skills, a module of annual training, and a continuum of professional development training for school building administrators and other school security personnel; ? Recommend a minimum number of hours of annual training regarding: ? Relationship building and communication skills; ? Verbal and nonverbal de-escalation techniques; ? Threat assessment and management techniques; ? Safety and legal implications of the use of force and physical restraint, and search and seizure.

DISCLAIMER: This section regarding the use of force is informational only. It is not an endorsement or permission for any school personnel to use force in any manner. The decision to adopt a use of force standard is done so by individual district school boards by adopting policy, standards and establishing a training regimen for all school staff, that is reviewed and endorsed by the school district attorney and administrative team.

DEFINING TERMS RELATIVE TO USE OF FORCE

? Corporal Punishment - Which is defined as any act which willfully inflicts or willfully causes the infliction of physical pain on a student. ? Necessary Use of Force - Means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended. ? Unnecessary Use of Force - Means the application of force where there is no justification for its use. ? Deadly Force - Means the intentional application of force through the use of firearms or any other means reasonably likely to cause death or serious physical injury.

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? Physical Abuse - Means the non-accidental infliction of physical injury or physical mistreatment on a child. ? Physical Restraint - Defined as the use of force or restraint used to control a student. ? Reasonable Man Doctrine - Hypothetical person who exercises “those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interest and the interests of others.” ? Reasonable Belief - Is an objective assessment based upon an evaluation of how a reasonable law enforcement officer with comparable training and experience would react to, or draw inferences from, the facts and circumstances confronting and known by the law enforcement officer at the scene. ? Constructive Force - The use of law enforcement officer’s authority to exert control over a subject. Examples include verbal commands, gestures, warning, and un-holstering a weapon. ? Physical Contact - Involves routine or procedural contact with a subject necessary to effectively accomplish a legitimate law enforcement objective. Examples include guiding a subject into a police vehicle, holding the subject’s arm while transporting, handcuffing a subject and maneuvering or securing a subject for a frisk. ? Excessive Force - Would be the application of more force than required where use of force is  necessary. ? Force Factor - A measure of the level of force used by officers relative to the level of resistance by suspects. ? Physical Force - Physical force involves contact with a subject beyond that which is generally utilized to effect an arrest or other law enforcement objective. Physical force is employed when necessary to overcome a subject’s physical resistance to the exertion of the law enforcement officer’s authority, or to protect persons or property. Examples include wrestling a resisting subject to the ground, using wrist locks or arm locks, striking with the hands or feet, or similar methods of hand-to-hand confrontation. ? Mechanical Force - Mechanical force involves the use of some device or substance, other than a firearm, to overcome a subject’s resistance to the exertion of the law enforcement officer’s authority. Examples include the use of a baton or other object, canine physical contact with a subject, or chemical or natural agent spraying. ? Unlawful Force - The use of force without the consent of the person against whom it is directed, for which the user may be liable. ? Use of Force - The amount of effort required to compel compliance by an unwilling subject. ? Continuum of Force - The typical force continuum begins with the presence of the officer or with verbal commands and then lists use-of-force options in order of increasing intrusiveness, ending