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How To Deal With Conflict Between Science and Case Law

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In a previous Force Science News [4/8/14], we reported a new study by Dr. Darrell Ross, indicating that restraining a violently resisting suspect in the prone position produces “no fatal adverse effects, even when TASER shocks, weight on the subject’s back, and hobbling are employed by officers to gain control.”

Ross urged that for the safety of themselves and suspects alike, officers “continue to prone out violently resisting people.”

In response, we received this email from a sheriff’s trainer in Colorado:

“I found the results of Dr. Ross’s study to be very interesting. However, the 10th Circuit Court of Appeals in Estate of Booker v. Gomez, released 3/11/14, found knee pressure applied to the back of a proned resister, along with a vascular neck restraint and an 8-second TASER drive stun to the same individual, to be excessive force. The coroner’s report said the weight on the resister’s back, the TASER application, and the neck restraint were contributing factors leading to the subject’s death.

“Case law dictates training and tactics.”

We asked police attorney William Everett, a consultant to the Force Science Institute, how he would advise trainers who face apparent conflicts between scientific findings and judicial decisions in their jurisdictions. His answer:

“Case law must, of course, dictate training; we can’t very well instruct officers to go outside the bounds of constitutional law.

“But it’s important for agencies to consult with their legal advisors when trying to figure out what implications case law may have on tactics and training. Such a discussion is vital to clarify exactly what legal issue(s) the court has decided, and what rules the court has announced about the use of force.

“The first question is whether science and law are really in conflict. The next question is how far you can go in harmonizing what the courts say with what the scientists report. You need legal guidance to determine if the law leaves you any room to move in the direction of following good science. These should be somber and thoughtful discussions involving legal advisors, executives, and trainers, because you are trying to make decisions that responsibly balance citizen risk, officer safety, and the risk of liability.

“As I read the Booker case, the court did not decide that the application of pressure to a suspect’s back automatically constitutes excessive force. Instead, the court wrote that it was excessive force to place and maintain substantial pressure on a prone suspect’s back after the suspect has been ‘subdued and/or incapacitated.’ The court noted evidence that an officer put over 140 pounds of pressure on a handcuffed suspect who weighed 135 pounds.

“In addition, the court noted that the TASER was applied three seconds longer than recommended and the neck restraint was sustained more than twice as long as the maximum allowed by the department’s training and policy.

“The appeals court upheld the lower court’s denial of officers’ motions for pretrial dismissal because of conflicting evidence about the circumstances that warranted bringing the case to trial. There was a dispute over when the suspect had been effectively restrained, such that reasonable officers would then dial back their level of force.

“All this considered, reasonable police legal advisors could conclude that the Booker decision does not forbid the use of weight to restrain suspects in all circumstances.

“That said, circumstances could very well arise where science and law seem to point you in different directions regarding training and tactics. Through the training of judges and prosecutors and the use of knowledgeable expert witnesses, we need to continue to expand the effort to acquaint decision-makers with the latest scientific findings regarding human performance and outcomes in use-of-force situations.”

Note: The Booker decision can be read in full by clicking here

Atty. Everett, a founding partner of the law firm Everett & VanderWiel, PLLP, in Buffalo, MN, is an instructor for the special two-day Force Science seminars. A former LEO and use-of-force trainer, he can be reached at: bill@e-vlaw.com

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