Civil Liability Issues Surrounding Non-Firearm Arrest-Related Deaths
( continued ) claims are filed against the involved LEOs and against agency administrators . Of these claims , seven are filed against the LEOs and five are filed against agency administrators . The plaintiff ’ s counsel seeks compensatory damages and frequently seeks punitive damages against the involved LEOs .
First , a claim will assert that the LEOs used excessive force which contributed and / or caused the death , as a result of using : physical control techniques ; intermediate weapons ( i . e ., TASER , an aerosol , impact weapon , projectiles , and a canine ); and the use of restraints associated with the LEOs applying their weight on the subject during the prone restraint process ( i . e ., handcuffs and leg restraints ). Second , a false arrest / imprisonment claim may be filed . Third , a claim will assert that the LEOs failed to consider the “ diminished capacity ” of the decedent and failed to wait for back-up , failed to use de-escalation techniques , and failed to call the Crisis Intervention Team . Fourth and Fifth , associated claims supported by medical experts allege that the LEOs failed to appreciate the mental or medical condition of the decedent , acted with “ deliberate indifference ,” and failed to accommodate the subject , violating the Americans with Disabilities Act . Sixth , a claim may be filed asserting that the LEOs failed to provide timely medical care to the decedent , underscoring the claim of deliberate indifference . Seventh , a claim may be filed that LEOs on scene failed to intervene with other LEOs allegedly using excessive force during the incident .
Application of the Graham Criteria In their decision in Graham , SCOTUS established criteria with which to review a claim of excessive force within the standard of objective reasonableness . Determining whether an LEO ’ s use of force is objectively reasonable is assessed within the totality of circumstances based on the perception of the LEO at the moment the seizure occurred , including , but not limited to : ( 1 ) the severity of the crime at issue ; ( 2 ) whether the subject posed an immediate threat ; ( 3 ) whether the suspect is actively resisting seizure ; ( 4 ) whether the circumstances are tense , uncertain or rapidly evolving ; and ( 5 ) whether the subject is attempting to evade seizure by flight ( see also Scott v . Harris , 2007 ). 4
While all of the criteria are considered , many of the lower courts decisions focus on whether the subject posed an immediate threat to the safety of the LEO or others , and whether the subject was actively resisting the seizure . A mere statement that an LEO feared for his or others safety is insufficient , and there must be objective factors to justify the concern based on the nature of the threat . 5
Many courts have adopted a “ threat risk factor ” analysis to assess the degree of threat and apparent threat posed by the subject , including : verbal threats to harm the LEO or others ; quickly advancing / charging the LEO ; exhibiting self-injurious behaviors ; the size of the subject ; assaulting and attacking the LEO ; scene evidence of property damage or evidence of assault against others ; responding to an assault in progress ; posing a grave danger to others ; reaching for the LEO ’ s duty belt ; grappling with the LEO ; possessing or access to a weapon ; creating a safety risk and escalation of violence ; and the subject ’ s behaviors posed an immediate and dangerous risk of serious physical harm to LEOs or others . The courts balance the risk and gravity of the threat factors posed by the subject against the degree of force reasonably necessary to eliminate the threat . 6-8
The courts ’ review of active resistance displayed by a subject
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