NTOA › Forums › Operational Leadership › SWAT Command Decision-Making And Leadership I: Federman v. County of Kern › What is your policy on chemical agents/OC as it relates to EDP’s? › Reply To: What is your policy on chemical agents/OC as it relates to EDP’s?
The standard operating procedure for using force against and EDP for our team is not to do it, unless it is lifesaving or becomes criminal. Working in the Fourth Circuit we are required to operate under court decisions of Estate of Armstrong v. Village of Pinehurst, (2016), which is a recent case that addresses the use of force, more specifically a Taser, on someone during an involuntary commitment. The case did not only examine whether the law was established at the time the force was used but instead reviewed the facts of whether the force used was unconstitutional. The review started with the three considerations from Graham v. Connor in detail. Looking at serious of the offense, the court wrote that this factor went in favor of Armstrong because the officers were not arresting him for a crime but were instead trying to take custody of him for a mental health commitment. The court went on to say that the officers know he was mentally ill because they were executing an involuntary commitment order and cited the United States Court of Appeals for the 9th Circuit with, “The diminished capacity of an unarmed detainee must be taken into account when assessing the amount of force to be exerted. The problems posed by, and thus the tactics to be employed against, an unarmed, emotionally distraught individual who is creating a disturbance or resisting arrest are ordinarily different from those involved in law enforcement efforts to subdue an armed and dangerous individual who has recently committed a crime.” The Fourth Circuit then review the second consideration, threat to officers and others, in Graham and the fact that the doctor who signed the involuntary commitment stated that Armstrong was a danger to himself, not others. The court said protecting a person from themselves has little government interest in using force to accomplish the seizure. The court went on to point out that using force to protect the person against self-harm was contrary to the very purpose of the seizure, which was to protect the person from harm. Weigh on the first two factors the court said, “The first Graham factor thus weighs against the imposition of force. The government’s interest in seizing Armstrong was to prevent a mentally ill man from harming himself. The justification for the seizure, therefore, does not vindicate any degree of force that risks substantial harm to the subject.” The third consideration, actively resisting or evading arrest, was reviewed level and Armstrong was resisting by refusing to let go of the pole he was holding on to for 30 seconds. The court concluded, “Non-compliance with lawful orders justifies some use of force, but the level of justified force varies based on the risks posed by the resistance. Armstrong was stationary, non-violent, and surrounded by people willing to help return him to the Hospital.” The court concluded that there was little danger or urgency involved. This is important to tactical officers, especially when dealing with a non-criminal barricade since the purpose of the custody is to protect a person from themselves.