When I was a patrol officer 30+ years ago and SWAT officer 25 years ago, it would be a cold day in hell before I removed handcuffs in the field from an arrestee who acted violently leading up to their arrest, regardless of their injury or health status. But policing evolves.
As much as police officers want a written, concrete “if-then” flowchart, dealing with humans isn’t that simple. The US Supreme Court recognized this in Graham v. Connor: “the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application … its proper application requires careful attention to the facts and circumstances of each particular case.”
In light of this reality, I will discuss three incident types from which officers may extract principles to apply in an unlimited number of circumstances.
Officer-involved shootings
At the scene of an officer-involved shooting (OIS), after the dangerous actions of the lethal assailant are stopped, on-scene priorities for police are:
- Safety
- Aid
- Evidence
The aid process begins by calling for medics, which should be done immediately after the physical conflict is over.
Using the radio should not be done during the fight, except to coordinate with other fighting units, but calling for medics and a supervisor can be done before the scene is “clear,” “cold,” or “green.” Get them rolling – medics can stage nearby if the situation remains too dangerous for their procedures.
Then, as soon as the scene is safe enough to begin administering aid, involved officers should check themselves and each other for injuries first. Officers with serious injuries are extracted while other officers turn their aid attention to the wounded adversary.
With a backup officer present, the officers designate contact and cover roles and work as a team.
The contact officer should:
- Secure their own weapon (i.e., fully snap their pistol in the holster).
- Don aid gloves.
- Move forward with and under the protection of a weapon-ready cover officer.
- Handcuff the assailant’s wrists behind their back.
- Search the assailant for weapons, removing any.
- Initiate aid to the assailant until relieved by medics.
Other aid-gloved officers may assist with aid as the cover officer(s) maintains overwatch. With aid underway, other arriving officers can start identifying witnesses and preserving evidence.
We initially handcuff all lethal assailants, including those who appear incapacitated or deceased, because down does not mean done. Not all “downed” subjects are as incapacitated as they appear; one moment earlier they were acting with lethal violence. Handcuffing, searching for and removing weapons are among the police steps that make the scene safe enough to render aid. These have been standard police practices for many years.
But what about removing handcuffs after the subject is searched and deprived of all weapons – is that OK? The answer is, it depends.
Two extremes at an OIS are:
- If the assailant is behaving with volition, generally handcuffs should remain on during aid.
- If the assailant has no vital signs, handcuffs should be removed to enhance aid efforts.
Officers should exercise incident-specific judgment for cases between the two extremes, keeping this principle in mind: don’t let a person die wearing handcuffs. Or ankle restraints, a hobble, or a spit hood. If the assailant’s health deteriorates to critical and the person is not acting with volition, consider removing restraints to enhance aid efforts.
Over the years I’ve heard some law enforcement practitioners assert that it is “tampering with evidence” if handcuffs are removed. In response, I remind them that aid supersedes evidence. [1] In your report and testimony, you will confidently explain why you removed the restraints — to enhance aid efforts — which reflects our respect for the sanctity of life, and life safety has a higher priority than evidence preservation.
Maxwell v. County of San Diego arose from a domestic violence incident. What about releasing handcuffs associated with a mandatory DV arrest? The mandate of arrest does not supersede the public expectation (and our moral obligation) to provide life-saving support for a person in dire medical distress, including DV arrestees. Besides, removing handcuffs does not mean the person is no longer under arrest, nor that you are allowing the person to escape or evade custody. If the arrestee is medically cleared, you re-handcuff them and take them to jail!
An ancillary benefit to removing restraints from an incapacitated person is that the appearance of things matters now more than it did 15+ years ago. Your deceased adversary does not appear menacing or dangerous wearing handcuffs in crime scene photographs. The opposite is often true – deceased assailants usually appear helpless and feeble, and when still wearing handcuffs behind their back they sometimes appear tortured in those photographs. So, do yourself a favor and remove the handcuffs to enhance aid. Enhanced aid might save a life and a career!
Dealing with “I can’t breathe”
With increasing regularity, police officers are being charged with serious crimes when arrestees die after saying, “I can’t breathe.” Police officers facing prison time for doing the arrest portion of their jobs is the most serious trend in the law enforcement industry in the past decade. From trainers to chiefs and sheriffs, we all better consider this trend with the severity it deserves and put measures in place to protect our protectors.
In May 2021 the Washington state attorney general charged three Tacoma police officers with homicide crimes, including murder, after a man died in their custody in March 2020. According to the AG’s office:
… Ellis began telling the officers that he could not breathe. At 25 seconds after 11:23 PM, the Vivint doorbell security camera on a house across the street captures the sound of Ellis saying clearly “Can’t breathe sir. Can’t breathe!” That house is approximately 112 feet away from the officers and Ellis. Less than 15 seconds later, Ellis can again be heard pleading with the officers and referring to them as “sir,” saying either “Breathe sir?” or “Please sir?” [2]
The Tacoma case isn’t alone.
Another one of many examples occurred in Los Angeles in July 2012. An experienced police officer detained Alesia Thomas in a patrol car’s backseat. Thomas complained about difficulty breathing. Thomas died that night. An autopsy found Thomas had cocaine in her system, but the cause of death was listed as undetermined because the struggle with police couldn’t be excluded as a contributing factor. There were no internal injuries or bruising. The officer was charged with felony assault and testified at trial that she thought Thomas was faking. The officer was convicted and sentenced to 36 months in prison.
In July 2014, a New York City police officer put Eric Garner in a neck restraint as part of arresting Garner. While being held down on the sidewalk, Garner reportedly said “I can’t breathe” 11 times. After Garner lost consciousness, some say he remained lying handcuffed on the sidewalk for seven minutes while the officers waited for an ambulance to arrive. Garner was pronounced dead at a hospital an hour later. Video of the incident generated widespread national attention and protests and is credited with starting the “I can’t breathe” movement against policing. NYC paid Garner’s family $5.9 million, and the officer was eventually fired.
While experienced cops know too well that experienced criminals fake or exaggerate all manner of illnesses and injuries to avoid jail, the words “I can’t breathe” or something similar must serve as an emergency medical alarm to arresting or transporting officers. It calls for immediate attention. That doesn’t mean immediate release from restraints, but doing so to enhance aid is on the list of considerations.
Officers should begin by believing the detainee. Call for medics without judgment or delay. An initial assessment and initial treatment can be done without removing handcuffs.
A dangerous misconception still lingering among some law enforcement officers is that if the person can talk then they can breathe. Based on that false assumption, an inference is made that if a person can say “I can’t breathe” then that is evidence the person is faking it. The assumption and inference are both wrong. In July 2020 Sergeant Brian Casey published an excellent article on this topic. All LEOs should read and understand it. [3]
“I can’t breathe” are not magic words that get someone out of going to jail or automatically get them out of our handcuffs. In cases where a handcuffed person is acting with aggression or yelling with powerful lungs, the chances that they are faking an “I can’t breathe” episode is high. In those cases, the handcuffs should remain on as medical attention is provided.
If you opt to remove handcuffs from someone who appears in medical distress and the arrestee jumps up and runs away, it’s OK to be embarrassed. But you should also be grateful the person didn’t die in your custody. The risk of escape (after searching and depriving them of weapons) is less concerning than seeing a good troop go to prison for doing their job.
Delirious and highly agitated subjects
In July 2021, several laws became effective in the state of Washington banning certain police actions including all forms of neck restraints. [4] The new law limiting force also does not allow peace officers to use physical force against agitated medical patients. [5]
Law enforcement agencies have done their best to adopt strategies for compliance, notwithstanding the impossibility in some of these laws. Several agencies adopted a no-response policy to most community caretaking functions, suicidal subjects and other no-crime requests for police service. That is the context in which we now discuss highly agitated and delirious subjects.
A safe and effective strategy for initiating medical treatment in these cases is to apply a vascular neck restraint (VNR) and put the person to sleep, so medics can begin treatment. However, the VNR render-safe technique is now illegal for some peace officers and prohibited by policy for others. That compels police to either use a significant amount of more injurious physical force to subdue the patient or do nothing to subdue the person.
In light of the recent Tacoma decision by the attorney general and the mandates by the legislature, at my agency, we changed our response to these situations. Presently, we treat those primarily as medical emergencies, which they are, and less as a series of crimes, which they also are. Because there is such a high risk of in-custody death with delirious and highly agitated subjects and because VNR is not an option for police, we instructed officers to not restrain the delirious person even if the subject is exhibiting violent behavior. We instructed officers to use no physical force against the medical patient; and instead, to protect themselves by staying away from the person.
We still respond because other people are at risk due to the patient’s unpredictable, delirious behavior. Property will be damaged, so there is a public expectation that we’ll be involved (for reporting purposes if for nothing else). But we are not willing to be involved in an in-custody death over property damage. So, our role now is limited to calling for medics and protecting others by keeping everyone away from the subject as we attempt de-escalation. If the subject runs away, we don’t try to stop them. Our plan is to let the patient act out until they burn out of energy and collapse, whereupon medics take over. This no-touch strategy is unfortunate for the agitated person because the longer medical treatment is delayed the worse their condition may become.
We will intervene to protect a human life from serious and immediate danger, but our goal (we recognize not all goals are absolutely achievable) is to use no police restraints at all. That being the case, it is OK to remove handcuffs from such a person.
If we must handcuff the patient to protect another person, we’ll release the handcuffs soon after sedation by medics. Very soon after. Transport to the hospital is done by medics or ambulance, not in a police vehicle. If medics want their patient restrained during transport, we ask them to use their own — the new laws don’t restrict what they can do.
Conclusion
Deciding whether or when to unhandcuff a detained person can be a tricky matter. For healthy suspects in the field, handcuffs generally remain ON. But even for healthy suspects, in the booking process where handcuffs are normally removed, there is discretionary variation for officers because of volatility variation in arrestees.
For decisions in the field, post-shooting priorities at an OIS, dealing with “I can’t breathe” and dealing with delirious subjects are three types of incidents from which LEOs may extract guidance for other scenarios. When it comes to seriously injured arrestees, removing handcuffs is on the list of early considerations.
Meanwhile, this aphorism is a good reminder for all cases in all states: Do not let someone die in your handcuffs.
References
1. For one example, see Maxwell v. County of San Diego, 9th Circuit, decided Feb. 14, 2013. The court reminded LEOs that interview evidence from a domestic violence victim was not more important than saving her life.
2. The State of Washington v. Christopher Shane Burbank.
3. Casey B. I can’t breathe: What it means for law enforcement. Police1, July 13, 2020.
4. RCW 10.116.020, originated as part of ESHB 1054.
5. RCW 10.120, originated as ESSHB 1310.
