excessive force ruling in US circuit court involving security

[bigdog]

NEWSWIRE
Use of excessive force still a subjective matter By Al Edwards - 10.29.2007

The Ninth U.S. Circuit Court of Appeals last week ruled that judges did not need to instruct juries on deadly force in excessive force cases involving police or security officers.

That ruling might have reduced liability for organizations involved in such cases, but it didn't clarify the definition of excessive force.

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The Ninth U.S. Circuit case upheld a verdict that rejected Elizabeth Acosta's civil rights complaint against the city of San Diego. She alleged that security officers and police at San Diego's Qualcomm Stadium violated her civil rights when an officer slammed her to the ground after she continued kicking him when she was removed from a stadium bar.

"It's a very subjective judgment," said William McShane, director of corporate loss prevention and life safety for Denihan Hospitality Group. "A jury could easily take a look at a situation and say a 6-foot-4, 250-pound security guard grabbing a 5-foot-1, 105-pound woman is excessive force and rule in favor of the woman although the security guard's actions weren't malicious."

Both Robbie Foster, partner at the law firm of Nelson Mullins Riley & Scarborough, and McShane said training is the best way to protect an organization against excessive force claims.

"There is just not a clear definition that you can tell security officers as to how they should handle that situation," Foster said. "It takes judgment, training, and the professionalism of a security officer not to lose his cool."

McShane said his officers, through New York state's security guard act of 1992, are mandated to complete three levels of training: An eight-hour course that covers basic security procedures including use of force, a follow-up 16-hour course that expands on those basic procedures conducted 90 days after an officer's hire date, and a yearly refresher course.

"My personal take all comes down to education," McShane said. "Whether it is the continuing education for staff awareness or beginning education courses, I feel it is just so important."

Foster said that adequate training could mean the difference between being held liable or not. In his experience as an attorney representing hotels and casinos, he said, organizations that trained their officers in courses that included use of force procedures were almost always found not negligent in excessive force claims.

"If your organization doesn't provide training on excessive force, handcuffing and things of that nature and you end up in court, that could be potential for a negligence finding," he said. "Training doesn't give you carte blanche, but it makes the company look like they did what they should have done to handle the case."

[bpdblue]

As always, use of force can get ugly real quick. But, as it states in the article, the woman was kicking the officers. If she was following them as they walked away, there should have been no problem in their actions, as she was committing the crime of battery at that point and could have been arrested.

You just have to be careful in touching people, and if it's getting physical, start saying things loudly, like, "stop kicking, " or, "quit hitting," ect, so others, and the bad guy can hear you. That helps in court, if that's where this ends up.

Unfortunatly, in California, state rules for guards say you can only use the same force as the aggressor is using, nothing more. Basically states you can only use the force that would amount to a stand-off. This sucks, especially since the rules I followed in law enforcement states that you can use the force necessary to over come that of the aggressor, a BIG difference.

[SecTrainer]

As always, use of force can get ugly real quick. But, as it states in the article, the woman was kicking the officers. If she was following them as they walked away, there should have been no problem in their actions, as she was committing the crime of battery at that point and could have been arrested.

You just have to be careful in touching people, and if it's getting physical, start saying things loudly, like, "stop kicking, " or, "quit hitting," ect, so others, and the bad guy can hear you. That helps in court, if that's where this ends up.

Unfortunatly, in California, state rules for guards say you can only use the same force as the aggressor is using, nothing more. Basically states you can only use the force that would amount to a stand-off. This sucks, especially since the rules I followed in law enforcement states that you can use the force necessary to over come that of the aggressor, a BIG difference.

Do you have a reference for that rule, please? I'm not familiar with it.

[bpdblue]

SecTrainer, I don't have the rule written on paper. All I can tell you about it (and I'm assuming you are talking about the rule regarding the security guard use of force) is that it was in the manual used by the security training outfit that I went through for my training in late November of this year.

I brought it up as an issue when I heard of it, as it was so alien to my police training, and I was informed that the equal, not greater than use of force policy was state mandated. I will try to get something in writing from them to post here on the subject.

[msofin]

SecTrainer, I don't have the rule written on paper. All I can tell you about it (and I'm assuming you are talking about the rule regarding the security guard use of force) is that it was in the manual used by the security training outfit that I went through for my training in late November of this year.

I brought it up as an issue when I heard of it, as it was so alien to my police training, and I was informed that the equal, not greater than use of force policy was state mandated. I will try to get something in writing from them to post here on the subject.

All of my training in Pennsylvania (Act 235, Allied, Wackenhutt, Vector..) told us we can only use the minimal force to end the attack. For example, if someone comes at you with a baseball bat, you can use your baton to deflect blows. But pulling your firearm and using it would be considered excessive fore. An other example, if someone charges at you and the only weapons are their fists than 'survival dancing' and use of OC spray would be appropriate but the use of a baton would be excessive.

[Black Caesar]

SecTrainer, I don't have the rule written on paper. All I can tell you about it (and I'm assuming you are talking about the rule regarding the security guard use of force) is that it was in the manual used by the security training outfit that I went through for my training in late November of this year.

I brought it up as an issue when I heard of it, as it was so alien to my police training, and I was informed that the equal, not greater than use of force policy was state mandated. I will try to get something in writing from them to post here on the subject.

Did a lil hunting with my Google Spear, found this: http://www.bsis.ca.gov/forms_pubs/poa.pdf

Hope it helps.

[Mr. Security]

......
You just have to be careful in touching people, and if it's getting physical, start saying things loudly, like, "stop kicking, " or, "quit hitting," ect, so others, and the bad guy can hear you. That helps in court, if that's where this ends up......

No offense intended bpdblue, (former leo) but that comment made me think of the videos that I've seen many times with 3-4 cops on top of a suspect, one with his knee in the guys back and the other with a knee pressing his neck into the asphalt and all the time saying: "Stop resisting!" "Relax!"

I don't know about you, but I don't know too many people who can relax with two knees jabbing into them making it difficult to breathe. I know some of these guys ask for it, but I’ve seen others that I would acquit on a charge of resisting arrest simply because excessive force was used.

[bigdog]

All of my training in Pennsylvania (Act 235, Allied, Wackenhutt, Vector..) told us we can only use the minimal force to end the attack. For example, if someone comes at you with a baseball bat, you can use your baton to deflect blows. But pulling your firearm and using it would be considered excessive fore. An other example, if someone charges at you and the only weapons are their fists than 'survival dancing' and use of OC spray would be appropriate but the use of a baton would be excessive.

§ 505. Use of force in self-protection.

(a) Use of force justifiable for protection of the person.--The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:

1. the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or
2. the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:
   (A) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and
   (B) a public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.

A baseball bat would most definitely cause serious bodily injury so you can use a firearm to stop the persons attack.

[Black Caesar]

No offense intended bpdblue, (former leo) but that comment made me think of the videos that I've seen many times with 3-4 cops on top of a suspect, one with his knee in the guys back and the other with a knee pressing his neck into the asphalt and all the time saying: "Stop resisting!" "Relax!"

I don't know about you, but I don't know too many people who can relax with two knees jabbing into them making it difficult to breathe. I know some of these guys ask for it, but I’ve seen others that I would acquit on a charge of resisting arrest simply because excessive force was used.

You're not asking them to kick back and have a beer, you're telling them to stop fighting and follow the commands. Every single police officer has (at the least) been through the defensive tactics training in the academy and knows for a fact what is and what isn't possible right then.

I had no problem at all figuring out what I needed to do right now to make the hurting stop, and those offenders on the videos could figure it out too if they weren't high, or fighting, or both. By hurting I mean the 4-5 other cadets who were on top of me, knees, elbows and all.

[Mr. Security]

You're not asking them to kick back and have a beer, you're telling them to stop fighting and follow the commands. Every single police officer has (at the least) been through the defensive tactics training in the academy and knows for a fact what is and what isn't possible right then.

I had no problem at all figuring out what I needed to do right now to make the hurting stop, and those offenders on the videos could figure it out too if they weren't high, or fighting, or both. By hurting I mean the 4-5 other cadets who were on top of me, knees, elbows and all.

Maybe it wouldn't have been so easy if they were actually MAD at you and wanted to let you know it.

[SecTrainer]

Did a lil hunting with my Google Spear, found this: http://www.bsis.ca.gov/forms_pubs/poa.pdf

Hope it helps.

That's the document I'm familiar with, BC, thanks. Here's what it says about use of force.

______________________________________

USE OF FORCE IN AN ARREST
If a suspect resists arrest, you are allowed to use reasonable force to subdue him. Reasonable force is that degree of force that is not excessive and is appropriate in protecting oneself or one’s property. If the suspect submits willingly, no force is necessary. If a suspect should resist arrest, remember that the only force allowed is that which is reasonable and necessary to overcome the resistance.

______________________________________

This is pretty standard fare and certainly does NOT say "you can only use the same level of force that a suspect is using". It says, as most such statements do, that you may use a reasonable degree of force, meaning the force necessary to overcome the resistance, but not excessive force.

In the next paragraph, the example given of "excessive force" would be something like "knocking unconscious an unarmed suspect when he is only trying to leave the scene." (in other words he is not attacking the officer). Doh!

The best definition of force that is "reasonable and not excessive" that I ever had in numerous training classes on this subject was "the minimum force needed to achieve compliance and/or restraint, or the minimum force needed to defeat an attack against you or another".

And, my experience is that as difficult as this concept might be to define in formal terms, an officer in possession of his faculties pretty much knows when he has reached that point...and when he has crossed the line.

[Black Caesar]

Maybe it wouldn't have been so easy if they were actually MAD at you and wanted to let you know it.

After the bruises and cuts I had they could have fooled me. The differance is that the officers you see on the videos have completed training, my fellow cadets 11 years ago were cadets and didn't know what they were doing, and it showed.

What do you suggest as an alternative, serve them tea and crumpets while asking pretty please. Use of Force is never pretty and usually doesn't make sense to people who don't have to do it, but it's done a certain way for a reason.

[Mr. Security]

After the bruises and cuts I had they could have fooled me. The differance is that the officers you see on the videos have completed training, my fellow cadets 11 years ago were cadets and didn't know what they were doing, and it showed.

What do you suggest as an alternative, serve them tea and crumpets while asking pretty please. Use of Force is never pretty and usually doesn't make sense to people who don't have to do it, but it's done a certain way for a reason.

Obviously, no. What I do expect is for an officer not to claim resisting just to justify the use of excessive force.

Of course there are times when great force must be used. What I'm referring to is young guys pumped up on adrenalin and anger who intend to manhandle a suspect to teach him a lesson for engaging in pursuit or for some other offense taken personally.

Admit it or not, you know that this happens.

[Black Caesar]

Obviously, no. What I do expect is for an officer not to claim resisting just to justify the use of excessive force.

Of course there are times when great force must be used. What I'm referring to is young guys pumped up on adrenalin and anger who intend to manhandle a suspect to teach him a lesson for engaging in pursuit or for some other offense taken personally.

Admit it or not, you know that this happens.

What you said is

No offense intended bpdblue, (former leo) but that comment made me think of the videos that I've seen many times with 3-4 cops on top of a suspect, one with his knee in the guys back and the other with a knee pressing his neck into the asphalt and all the time saying: "Stop resisting!" "Relax!"

Which is the only thing I'm talking about. As has been explained before to others, things happen for a reason, and they aren't as "bad" as the look. The reason why you pin a person's shoulders by basically "kneeling" on him (the whole knee between the shoulder/neck junction thing that it seems freaks you and DDog completely out) is because if their shoulders can't move, they can't get up, BUT their arms CAN move, so they can still comply with your commands, but can't pose a threat to you.

As I explain to everyone, what you see Law Enforcement doing isn't on some whim, it comes from hard years of collective experiance in what works and what doesn't work, experience that is turned into training. What you think of as jumped up angry young cops is actually cops who aren't actively thinking about what they are doing, but responding to their training. Thats why you train and train and train so you don't have to think about it.

The question becomes whether or not the officer in question is well trained. If the officers are doing what you describe, then they ARE doing what they are trained to do. What should worry you is if you see them doing something that could get them hurt (like trying to play nice with someone who just ran from them, big hint, don't want to get hurt, don't run from the cops, seems simple to me).

[craig333]

I'd like to think I can see both points. Certainly you do want to gain control quickly for your own safety. On the other hand, expecting somebody to instantly go limp isn't right either. I certainly hope the force used is only force necessary. No one is going to care if you were a little rough with some murder suspect. Come to find out he was slow responding to commands because he was deaf is not going to be looked at quite the same.

A baseball can can be deadly weapon. Unfortunately just holding one doesn't qualify. We all know how fast that can change. Those kinds of situations are where police can react a lot more proactively than we are allowed to.