Use Of Force

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This directive is for internal use only and does not enlarge an employee’s civil liability in any way. The directive should not be construed as creating a higher duty of care, in an evidentiary sense, with respect to third party civil claims against employees. Violations of this directive, if proven, can only form the basis of a complaint by the San Juan County Sheriff’s Office for non-judicial administrative action in accordance with the rules and laws governing employee discipline.
DIRECTIVE TYPE: POLICY SUBJECT: Use of Force NUMBER: OPER-304.01
APPROVED BY: Sheriff Ken Christesen EFFECTIVE DATE: 5/17/2015
NMLEA STANDARDS: ADM.05.01 & ADM.05.02 LAST MODIFIED: 6/28/2017 LAST REVIEW: 5/16/2017


PURPOSE:


The purpose of this policy is to provide personnel with guidance and the legal parameters in applying objectively reasonable force. Because no two situations are exactly alike, this policy does not and cannot specify in detail every action that should be taken in each individual situation. A deputy’s use of force can vary greatly depending on the facts and circumstances surrounding the incident.


POLICY:


There is a compelling public interest that deputies authorized to exercise the use of force do so in an objectively reasonable manner and in a way that does not violate the civil rights guaranteed by the Constitution and applicable law. It is the policy of the San Juan County Sheriff’s Office that deputies may use force, both deadly and less-lethal, which is objectively reasonable to control a situation, effect an arrest, overcome resistance to arrest, or defend themselves or others from harm.


DEFINITIONS:


The following definitions will apply for the purposes of this policy:


  • Force – Any action, with or without a weapon, used to resist or control.


  • Resistance – Force used by subjects to oppose, defeat, attack, and/or avoid arrest or apprehension.


  • Control – Force used by deputies to seize, arrest, stop, and/or avoid injury or death; above unresisted handcuffing and including pointing a firearm at a person.


  • Less-Lethal Force – Any action, with or without a weapon, that is not reasonably expected to cause death or great bodily harm.


  • Deadly Force – Any force application that is reasonably likely to cause death or great bodily harm.


  • Objectively Reasonable Force – The legal standard used to determine the lawfulness of a use of force is the Fourth Amendment to the United States Constitution. See Graham v. Connor, 490 U.S. 386 (1989). Graham states in part, “The force must be reasonable under the circumstances known to the officer at the time the force was used”. In determining the necessity for force and the appropriate amount of force, deputies will evaluate each situation in light of the known circumstances to include; the severity of the crime at the time force is used, the level of resistance presented by the subject, the risk or apparent attempt by the subject to escape, and/or whether the subject was posing an immediate threat to the deputy or others.


  • Immediate Threat – A deputy’s reasonable belief of impending danger, death, or great bodily harm from any action or result of an action that may occur during an encounter. A subject may pose an immediate threat even if they are not actively threatening a deputy with a weapon. For example, an immediate threat may be when a suspect has a weapon within reach, is running for cover carrying a weapon, or running for a place where the deputy reasonably believes a weapon is available.


  • Reasonable Belief – A belief, based on specific and articulable facts which, when taken together with the rational conclusions from those facts, reasonably warrant a deputy’s actions.


  • Great Bodily Harm – Any injury which creates a high probability of death; or which causes serious disfigurement; or which results in permanent or protracted loss or impairment of the function of any member or organ of the body.


  • Force Tools – Any issued and/or approved less-lethal device. This includes, but is not limited to, electronic control devices, oleoresin capsicum (OC) spray, batons, etc.


  • Physical Technique – Any hand-to-hand technique used to control a subject. This includes, but is not limited to, forms of grabbing, pulling, pushing, punching, and kicking.


  • De-Escalation – A decrease in the amount of control used in an incident in response to a decrease in the amount of resistance posed by the subject.


  • Deputy – All sworn Sheriff’s Office personnel regardless of rank as well as reserve deputies while acting in their official capacity for the Sheriff’s Office.


PROCEDURE:


GENERAL


SHERIFF’S OFFICE PHILOSOPHY ON USE OF FORCE


The application of force is always done out of need and never out of desire or malice. Deputies should, when possible, look for ways to avoid using force and gain voluntary compliance. When a suspect is non-compliant and chooses to resist, or any other time that force is determined to be needed, deputies will stay within the boundaries of governing laws and policies; use self-restraint; and display dignity and respect towards the suspect. Deputies often face situations where the boundaries of the law allow for responses that are not necessarily morally appropriate given the nature of the situation. For this reason, deputies should always strive to do the right thing for the right reason.


GENERAL


Whenever practical, deputies will utilize commands, warnings and verbal persuasion to gain compliance and allow a reasonable opportunity for compliance before resorting to force. Commands, warnings and verbal persuasion are not required in circumstances where the deputy must make a split-second decision, or if the deputy reasonably believes that issuing the command or warning would place the safety of the deputy or others in jeopardy.


When possible, deputies should use sound judgment and tactics to prevent unnecessary confrontation. These tactics may include, but are not limited to, area containment, requesting back-up, calling for a specialized unit, etc.


In the course of their duties, deputies may be required to use force. Listed in no particular order, reasons for this may include, but are not limited to:


  • To effect an arrest or prevent the escape from custody of a subject whom the deputy reasonably believes has committed an offense;
  • To defend themselves or others from the use, attempted use, or threat of physical force;
  • To take a subject into protective custody when authorized by law, such as those who are a danger to themselves or others (pursuant to 43-1-10 NMSA 1978) and/or subjects incapacitated by alcohol (pursuant to 43-2-8 NMSA 1978);
  • In response to a medical emergency where the patient is incapable of making a rational decision which creates an immediate threat of serious harm to himself or others; and/or
  • To control a situation, and to overcome resistance to a lawful order.


Deputies will use only that amount of force that is objectively reasonable given the particular facts and circumstances perceived by the deputy at the time of the incident to achieve legitimate lawful objectives. (ADM.05.01(A))


The reasonableness of a particular use of force must be reviewed from the perspective of a reasonable deputy on the scene, rather than with the “20/20 vision of hindsight.” When evaluating reasonableness, consideration must be given to the fact that deputies are often forced to make split-second decisions based on limited information in tense, uncertain, and rapidly evolving circumstances.


When determining the appropriate type and amount of force to use, or when reviewing a use of force, the primary factors to consider are:


  • The severity of the crime at issue;
  • Whether the subject was posing an immediate threat to the safety of the deputy(s) or others;
  • The level of threat or resistance presented by the subject; and/or
  • The risk or apparent attempt by the subject to escape.


Additional factors to consider include, but are not limited to:


  • The availability of other resources;
  • The training and experience of the deputy;
  • Deputy versus subject factors such as age, size, relative strength, skill level, injury/exhaustion, and number of deputies versus number of subjects;
  • Any foreseeable risk of secondary injuries;
  • The environmental factors; and/or
  • Any other relevant facts.


Law enforcement by nature is a dangerous occupation which requires deputies to put their lives at risk for the safety of citizens and victims. Deputies are not required to retreat from situations nor are they required to be exposed to possible physical injury before the application of force.


Force will be de-escalated as subject resistance decreases. The authorized use of force ends when the resistance ceases and/or the deputy has accomplished the purpose necessitating the use of force. Force will never be used to subject a person to torture and/or cruel, inhumane, or degrading treatment or punishment.


There may be times when a deputy must apply force to a mechanically restrained (e.g., handcuffed) subject. As is consistent with this policy, the force must be objectively reasonable.


Absent specific authorization from a supervisor, charges will be filed against all subjects a deputy has used force against. A supervisor may authorize a deputy to not file charges in the rare occurrence where to do so would be unfitting. An example of this may be when a deputy uses force on a person suffering from a mental illness or medical emergency and criminal charges would be inappropriate under the circumstances. These incidents will be documented in an incident and Use of Force Report.


DEADLY FORCE (ADM.05.01(B) & (C))


Deadly force may be used when the deputy has a reasonable belief that his or her life or that of another is in immediate danger of death or great bodily harm based on the totality of the circumstances known to the deputy at the time deadly force is used.


Deadly force may be used to prevent escape when the deputy has probable cause to believe that a suspect poses a threat of serious physical harm to the deputy or others, and a reasonable, less-lethal alternative for apprehension does not exist. When possible, a verbal warning of the use of force should be given by the deputy. The use of deadly force cannot be used to seize an unarmed, non-dangerous fleeing felon or misdemeanant.


Firing warning shots is prohibited. (ADM.05.02)


While deputies are trained to generally use firearms to deploy deadly force, exigent circumstances may develop where it may not be effective, expedient enough, or possible to deploy a firearm. When the use of deadly force is objectively reasonable, it will also be considered reasonable to apply that force by whatever means is necessary such as the use of another weapon, tool, vehicle, or physical technique.


Deputies may draw and point their firearm at a subject when there is an objectively reasonable determination that the situation may escalate to the point where deadly force would be authorized. As soon as this determination is no longer reasonable, deputies will discontinue pointing their firearm and may choose to reposition to a low ready or secure/holster their firearm.


The following actions are prohibited unless the use of deadly force is reasonable:


  • Intentional strikes with an impact weapon to a subject’s head, neck, spine; or groin;
  • Intentionally targeting the head, neck, upper torso, and genitals with an ECD; and
  • Neck restraints, chokeholds, or other similar weaponless control techniques that restrict air or blood flow to the head.


FIRING WEAPONS AT OR FROM A MOVING VEHICLE


Firing a weapon at or from a moving or fleeing vehicle is prohibited, except when objectively reasonable due to the occupant of a vehicle using or threatening to use deadly force.


Deputies should avoid tactics that places them in a position where a vehicle could be used against them.


FORCE TOOLS


A variety of force tools are issued to sworn personnel for use in those situations where a firearm or physical technique would not be considered a reasonable or safe option.


Deputies will not regularly carry or use any force tool prior to successfully completing all relevant, agency-approved training for each tool. Force tools authorized for use are detailed in the Sheriff’s Office force tools policies.


While deputies are trained and authorized to utilize a variety of force tools and physical techniques for situations not requiring deadly force, exigent circumstances may develop where it may not be effective, expedient enough, or possible to deploy one or more of these options. In these circumstances where the use of less-lethal force is objectively reasonable, it will also be considered reasonable to apply that force by whatever means is available at that moment.


MEDICAL EMERGENCIES


Due to the first-responder nature of law enforcement, deputies may find themselves faced with a medical emergency where the patient is in a possible life-threatening predicament and is being combative due to an altered or irrational mindset. When faced with a situation that poses an immediate threat of serious harm to the patient and/or others, deputies are authorized to only use that amount of force which is reasonably necessary to stop the immediate threat.


Because a use of force on a patient in a medical emergency does not fit the traditional reasons for using force, e.g., defending oneself from the use of physical force, reviews for policy compliance will be done utilizing the following criteria:


  • Was the person experiencing a medical emergency that rendered them incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others?
  • Was some degree of force reasonably necessary to stop the immediate threat?
  • Was the force used more than reasonably necessary under the circumstances?


MEDICAL ASSISTANCE


Medical assistance will be rendered and/or obtained as soon as practical for a subject who:


  • has sustained injury;
  • has expressed any complaint of injury;
  • has been struck on the head or neck with an impact weapon or other hard object;
  • has been restrained around the neck or throat;
  • has been exposed to OC spray;
  • has been exposed to any other force tool (ECD, baton, etc.) and medical treatment is required by the force tool policy;
  • is, or is suspected of, being unconscious; or
  • anytime there is a reason to believe the subject has been injured from the use of force incident.


If a subject is injured, deputies have a duty and obligation to provide medical treatment as soon as reasonably possible while the subject is in custody. Deputies are not required to render medical aid to an injured subject until a scene has been deemed safe. Medical assistance performed by deputies should be to the extent trained and equipped. Any injured subject will be treated with dignity and respect.


DUTY TO INTERVENE


All sworn Sheriff’s Office personnel, regardless of rank, have a duty to intervene on behalf of a citizen whose constitutional rights are being violated in their presence by another law enforcement officer. Sworn personnel present and observing a use of force that they reasonably believe to be excessive will, when in a position to do so, intervene to prevent further use of the unreasonable force. In addition, such incidents will be immediately reported to the witnessing employee’s supervisor and followed up with a memorandum. A formal internal investigation will be conducted in all such incidents involving Sheriff’s Office employees. This duty to intervene is also listed in the Sheriff’s Office Standards of Conduct Policy.


EXCESSIVE FORCE


Deputies who are found to have used excessive or unauthorized force may be subject to corrective training, discipline, possible criminal prosecution, and/or civil liability.


ADMINISTRATIVE:


REGULAR AND PERIODIC USE OF FORCE TRAINING


All sworn personnel will receive, no less than annually, use of force training. This training will consist of:


  • Legal and policy aspects governing use of force;
  • Use of force skills training;
  • Use of force decision training; and
  • Verbal communication training.


All newly hired lateral-transfer deputies will receive initial training on all the above areas prior to beginning the field training program.


ANNUAL ANALYSIS


The Administrative Captain is responsible for conducting or assigning an annual analysis of all use of force incidents. The purpose of this analysis is to reveal any possible patterns or trends that indicate training needs or policy and procedure modifications. The results of this analysis will be forwarded to the Sheriff.


CROSS REFERENCES:


  1. Graham v. Connor, 490 U.S. 386 (1989)
  2. Tennessee v. Garner, 471 U.S. 1 (1985)
  3. Estate of Corey Hill v. Miracle, 2017 WL 1228553 (6th Cir. 2017)
  4. SJCSO Policy PERS-505 “Standards of Conduct”