Civil Liability Issues Surrounding Non-Firearm Arrest-Related Deaths
( continued )
is frequently open to interpretation . Generally , courts define active resistance to mean a subject ’ s physical movements to defeat an LEO ’ s attempt to control the subject including : bracing , tensing , or pushing the LEO ; actively physically struggling or wrestling with an LEO ; punching and kicking at them ; strength and stamina of the subject ; lunging and charging the LEO ; disobeying an LEO ’ s commands ; thrashing and kicking the LEOs ; and standing up during and after being restrained on the ground . 9-10
Additionally , the Fourth , Sixth , Ninth , Tenth ,
and Eleventh Federal Circuit Appellate Courts also consider whether the subject ’ s behaviors manifested a “ diminished capacity ” in order to examine the reasonableness of an LEO ’ s use of force . 11-15 A subject exhibiting violent behaviors associated with a mental illness or excited delirium ( ExDS ) are frequently considered by many courts to align with a “ diminished capacity .” Factors the courts examine may include : disorientation or confusion exhibited by the subject ; incoherent speech and bizarre behaviors appear consistent with a mental illness or being under the influence of a chemical substance , or a medical condition ; the inability to comply with the LEO ’ s instructions ; and whether the subject exhibited a severe psychological break with reality . While many courts consider the subject ’ s diminished capacity , it does not preclude an LEO from using a reasonable amount of force to bring the subject under control . Further , SCOTUS has twice held that even though an officer may know that a subject is mentally disabled , an LEO may use force , including deadly force , in self-defense or the defense of another for protection and restraint . 16-17
Claims Against Administrators Claims filed against agency administrators are based on five general areas . First , the plaintiff ’ s counsel will assert that the administrator failed to direct the involved LEOs actions in using force and restraint equipment in accordance with the agency ’ s policies which were Constitutionally defective . 18 A second claim asserts that the administrator failed to supervise and discipline the LEOs and had prior knowledge that they chronically acted outside the scope of their authority and agency policy without remediation or termination . A third claim frequently alleges that administrators were “ deliberately indifferent ” to the Constitutional rights of the decedent by failing to train the involved LEOs in the use of reasonable force and the response to subjects exhibiting diminished capacity . 19-20 Fourth , counsel may file a claim asserting that the administrator knowingly hired LEOs that had a propensity for violence . Finally , plaintiff ’ s counsel may claim that the administrator ratified the LEO ’ s conduct by failing to perform
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