Below you will be given a short quiz on a fictitious incident dealing with use of force. Rather than a 100-question written exam, this will be just one question with a pass or fail grade — much like real life. First, let’s set the scene.
You’re on patrol and you spot a vehicle with an expired registration tag. You pull over the driver and explain the reason for the stop. The driver argues with you and does not believe he should be ticketed. You decide to arrest the driver. As you grab the driver’s hand in preparation for handcuffing, he pulls away from you and continues to argue.
You respond by moving behind the driver and forcefully applying a control hold. You drive him face down into the hood of your patrol car and then take the driver to the ground. Once on the ground, the driver still fails to comply with your commands, so you use your TASER in probe mode. You are now able to successfully handcuff the driver.
Question: Was the force used reasonable?
A. Yes
B. No
C. Depends
To answer this question, we need to refer to Graham v. Connor (and personally, I think we can never review Graham v. Connor too much). Graham v. Connor established a three-prong test to determine the reasonableness of force. Applying the three-prong test to this incident, we first look at the nature of the incident.
In this case it is an expired tag — certainly not a major offense. Another prong is if the person is trying to flee or evade the arrest. In this case, yes. However, it should be noted that recent court decisions have given less weight to this prong.
The last prong, and the one which courts give the most weight, is if the person is an immediate threat to the officer or someone else.
To determine if the driver posed an immediate threat, we would need to consider all the factors we learned in the academy — officer’s and suspect’s age, gender, height, and weight, as well as issues like the presence of weapons, the suspect’s skills, the environment, and the like.
For our quiz, let’s assume the driver was an offensive lineman for the local university football team. In this case, the potential threat is obvious.
But what if the driver were a hunched-over, 80-year old man, standing 5’5”?
Could you explain in court how this person was an immediate threat to you?
Here’s how the questioning would go. The plaintiff’s attorney would begin by asking about your physical fitness and defensive tactics training. The attorney may even compliment you on your virile, fit appearance.
The attorney would then ask, “Tell the truth, you were afraid that this decrepit old man was going to kick your butt, weren’t you?”
You’d angrily respond with a huff, “Of course not!”
And then somebody will write a very big check, because you just admitted there was no immediate threat.
The correct answer to the quiz is C. IT DEPENDS.
It all comes down to whether you can explain how this person was an immediate threat to you or another. If you can’t do that, then don’t use personal weapons, impact weapons, pepper spray, or a TASER.
Priority one: stay safe.
Priority two: don’t get sued (at least not successfully).
