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International Assn. of Chiefs of Police
Legal Officers Section & Police Psychological Services Section
2001 Conference materials

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Back to List of Conference Papers

Emerging Legal Issues in Law Enforcement Technologies

Presented by:

Attorney Elliot B. Spector
Connecticut Criminal Law Foundation's
Center for Police & Security Training
1760 Mapleton Avenue, Suffield, Connecticut 06078
Ph: 860-668-3300 Facsimile: 860-668-7369

Why Should Law Enforcement Agencies Acquire New Technologies?

1) To Help Officers Stop Vehicles Without Engaging In Pursuits Thus Reducing The Risk of Death and Serious Physical Harm to Innocent Citizens and Officers. (Saving Lives and Millions of Taxpayer Dollars Each Year.)

Helseth v. Burch, 258 F3d 867 (8^th Circuit 2001)

     Shortly after midnight an intoxicated driver raced his car past an officer at a speed of 111 mph.  The officer began pursuit, observing the fleeing vehicle run through stop signs and stoplights at 60 to 80 mph.  A second officer, Burch, took over as lead squad car, following the driver through more stop signs before it stopped briefly at a dead-end before driving over lawns and a small retaining wall onto another street.  Burch attempted PIT (Pursuit Intervention Tactics) causing the vehicle to spin around, cross the median and travel on a highway the wrong way.  Another PIT maneuver again spun the vehicle now going in the correct direction.  They accelerated to speeds of 80-100 mph, running a red light and colliding with a pickup truck, killing the passenger and leaving the plaintiff a quadriplegic.  Three juveniles in the fleeing vehicle suffered serious physical injuries.

Feist v. Simonson, 222 F.3d 455 (8^th Cir. 2000)

     Simonson pursued a suspected stolen vehicle at high speeds for over 6 miles, 1.2 of which was in the wrong direction down an interstate.  The suspect vehicle struck plaintiffs vehicle at a closing speed of between 97 and 104 MPH killing the plaintiff.  Simonson had a history of engaging in high-speed pursuits.  The court found that reasonable officers would know or should know as a matter of law that engaging in such a pursuit violated the 14^th Amendment.  The court further found that although the decision to pursue may have been reasonable given the length of time and the officers knowledge of the risks, his decision to continue the pursuit would be evaluated under the deliberate indifference test.

2) To Avoid Having To Kill Emotionally Disturbed Persons. (Saving Lives And Millions Of Taxpayer Dollars Each Year.)

Ford v. Moore, 237 F3d 156 (2^nd Cir. 2001)

     At about l:00 a.m. four officers were dealing with a 20-year-old suicidal man who was sitting in a baseball field dugout holding a rifle pointed at his chin.  While engaging Ford in conversation, one of the officers determined that he was about to shoot himself and gestured to another officer with his fingers a signal to disarm Ford.  Together they grabbed the rifle, pointed it away from everybody, during which time it discharged prior to the officers ceasing it. The struggle continued and one of the officers said he saw a glimpse of silver.  A second shot rang out and Ford was bleeding profusely from a wound to the head.  The struggling officer looked down and saw that his sidearm was missing from its holster leaving the officers to believe that Ford took the gun and shot himself.

3) To Avoid Killing Or Seriously Injuring Unarmed Persons. (Saving Lives And Millions Of Taxpayer Dollars Each Year.)

Anderson v. Russell, 247 F3d 125 (4^th Cir. 2001)

     An officer working a part-time security position at a mall was informed that plaintiff appeared to have a gun under his sweater.  Observing plaintiff for approximately twenty minutes, he noticed a bulge and followed him out into a parking area where plaintiff was ordered to his knees and to put his hands up.  He complied, but when he reached into his left back pocket to turn off his walkman, the officer believed he was reaching for a weapon and shot him three times.

Willingham v. Loughnan, 261 F3d 1178 (11^th Cir. 2001)

     Plaintiff, standing in her doorway, observed a police dog biting her brothers leg during an altercation with police. She threw a knife, bottle and glass at the officers before being shot.  Although unarmed, she was wounded when two officers each fired four shots at her.

4) To Improve Ability To Conduct Investigations So That Innocent Persons Are Not Falsely Imprisoned. (Saving Millions Of Taxpayer Dollars Each Year.)

Wilson v. Lawrence County, 260 F3d 946 (8^th Cir. 2001)

     Plaintiff, who was mentally retarded, spent nine years in prison after being convicted for murder.  The murder conviction was entered after an Alford plea, enabling plaintiff to avoid the death penalty.  He was granted a full pardon after an independent investigation concluded that he did not commit the crime.  His confession was based almost entirely on his confession.  When officers interrogated Wilson, he was never left alone, no friend, family member, guardian or advisor was present, they lied to him about an eye witness and that a psychiatrist had analyzed him, offered leniency if he confessed, insisted that he would be found guilty if he did not confess, rebuked him for not cooperating when he failed to provide correct details about the crime, offered details of the crime through leading questions, and used threatening tones and language throughout the entire interrogation.

5) To Reduce The Number Of False Arrests Due To Misidentification.  (Saving Millions Of Taxpayer Dollars Each Year.)

Young v. City of Little Rock, 249 F3d 730 (8^th Cir. 2001)

     Plaintiff was arrested on a warrant for her sister who used her name as an alias.  When the officer asked her for verification, the dispatcher mis-read the information on her computer, failing to notice that plaintiffs name was listed only as an alias.  At the station the officer noticed that the attached photograph did not match the plaintiff and asked his supervisor what to do.  The supervisor asked him to seek guidance from the detectives who told him plaintiff would have to remain in jail until Monday morning when a judge could decide what to do.  On Monday morning a judge ordered plaintiffs release after a fingerprint check.  Because plaintiff was in jail garb she was transported chained to other detainees to the jail, strip-searched and released after approximately two and a half hours.

Kennell v. Gates, 215 F.3d 825 (8^th Cir. 2000)

     Sharon Kennell was arrested after a routine computer check resulted in an outstanding warrant listed for Deborah Kennell.  Because Deborah had used Sharons name during an arrest process the name Sharon was listed as an alias.  The identification section determined that the fingerprints did not match and sent an in-house computer message to the warrant and fugitive section and to the attention of officer Gates who processed plaintiffs arrest.  The message was received the day of the arrest after defendants shift.  She worked the next two days but never took action to release plaintiff.  The jury apparently did not believe her when she testified that she did not receive the message and returned a verdict of $10,000.  The appeals court upheld the verdict stating that the jury is generally permitted to infer that the information sent via a reliable means, such as a postal service or telegram, was received.  It was found that the same inference regarding other forms of communication such as facsimiles, electronic mail, and in house computer message systems could be made provided they are accepted as generally reliable and the particular message is properly dispatched.

Nelson v. McMullen, 207 F.3d 1202 (10^th Cir. 2000)

     Helen McMullen, an officer with the Chickasha Oklahoma Police Department stopped Dorothy Nelson for speeding.  The dispatcher notified McMullen that a person with the same name, date of birth and general description with a tattoo on her chest was wanted on a felony warrant in Ohio.  Officer Paul Ratzlaff arrived as Ms. Nelson was ordered out of her car.  Ms. Nelson informed the officers that she had not been in any trouble and said she did not have any tattoos.  The officer explained that the wanted person had a tattoo on her breast and again asked Nelson if she had a tattoo.  She again denied having a tattoo and was told by McMullen that she could take her down to the station.  Nelson admittedly refused to go to the station while McMullen was insisting that she would need to see her chest in order to confirm that she did not have a tattoo.  Without being asked Ms. Nelson grabbed the collar of her oversized tee shirt and pulled her shirt and bra down far enough to expose her breasts, including her nipples to both officers.  She did not have a tattoo, was issued a citation and released.

6)  To Reduce The Number Of False Arrests Due To Computer Errors And Erroneous Reliance On Computer Information.

Berg v. County of Allegheny, 219 F.3d 261 (3^rd Cir. 2000)

     A court clerks error in transposing two numbers into the computer system led to plaintiffs arrest.  When the wrong numbers were entered, all of the identifying information of the plaintiff appeared on the arrest warrant.  When the probation officer requesting the warrant checked the case file he noticed that no warrant for the proper person had been issued and thought for a moment that an erroneous warrant may have been issued, but that no practical way existed to determine if this had been done.  The court found that both the clerk who entered the information and the adult probation officer were entitled to qualified immunity; however, the officer executing the warrant was not.

...an apparently valid warrant does not render an officer immune from suit if his reliance on it is unreasonable in light of the relevant circumstances.  Such circumstances include, but are not limited to, other information that the officer possesses or to which he has reasonable access, and whether failing to make an immediate arrest creates a public threat or danger of flight.

     The court also found that the county could be held liable.  The record contained no evidence for procedures guarding against the clerks mistake, no double check to insure that warrants were issued in the correct name, nor was there any procedure by which an officer suspecting an erroneous warrant could ascertain whether one, in fact, was issued.

Having employed a design whose slip of a finger could result in wrongful arrest and imprisonment, there remains an issue of fact whether the County was deliberately indifferent to an obvious risk.  The Countys failure to provide protective measures and fail-safes against the clerks mistake seems comparable to a failure to equip law enforcement officers with specific tools to handle recurring situations. when such a simple mistake can so obviously lead to a constitutional violation, we cannot hold that the municipality was not deliberately indifferent to the risk as a matter of law.

     The court went on to quote Justice Ginsburg and Justice OConnor on law enforcements increasing reliance on computer technology.

Computerization greatly amplifies an errors effect, and correspondingly intensifies the need for prompt correction; for inaccurate data can infect not only one agency, but the many agencies that share access to the database.  Arizona v. Evans, 514 U.S. at 26  the police, of course, are entitled to enjoy the substantial advantages this technology confers.  They may not, however, rely on it blindly.  With the benefits of more efficient law enforcement mechanisms comes the burden of corresponding constitutional responsibilities.

Id, at 17-18.

7)  Allow Officers To Legally Detect Concealed Weapons For The Protection Of Officers And The Public.  (Saving Lives and Millions of Taxpayer Dollars Each Year.)

Florida v. J.L., 529 U.S. 266 (2000)

     An anonymous tip that a person is carrying a gun is, standing alone, insufficient to justify a Terry stop and frisk.

United States v. Colon, 250 F.3d 130 (2^nd Cir. 2001)

     Officer may not conduct Terry stop of individual reported to have gun when information is relayed from a 911 operation or dispatcher untrained in law regarding determinations of reasonable suspicion or probable cause.

Thermal Imaging

Use of Sophisticated Technologies Which Reveal Activities Within The Home May Not Be Employed Without A Warrant

Kyllo v. United States, 121 S.Ct. 2038 (2001)

      Agent Elliott believing that Kyllo may have been growing marijuana inside his home, sat across the street in his car scanning Kyllos home and several adjoining properties with a thermal imager.  Thermal Imagers detect infrared radiation, which is not visible to the naked eye, showing heat patterns in black, white, and gray.  The scan revealed a heat pattern over the roof of the garage and a sidewall of Kyllos home.  This information, plus tips from informants and utility bills, led to the issuance of a warrant authorizing the search, which resulted in the seizure of more than 100 plants.

     In a five/four vote, the Supreme Court found the use of the thermal imager to be unlawful.  where, as here, the Government uses a devise that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant.

     In rendering this decision, the court concentrated on the sanctity of the home.  At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.  Silverman v. United States, 365 U.S. 505 (1961).  The degree to which the government intrudes into the home is irrelevant.  The Fourth Amendment protection of the home has never been tied to measurement of the quality or quantity of information obtained.  Citing Silverman, the court noted that any physical invasion of the structure of the home, by even a fraction of an inch, was too much.  Simply put, it does not matter how the invasion occurs or what is seen, for everything within the home is protected.

     This concentration on the privacy expectation in a home means, for the time being, that technologies used outside of the home for the purposes of detecting weapons or narcotics on persons, in packages or even in vehicles may be conducted without a warrant.  There is no doubt that the technologies used for the purposes of outdoor searches for criminals, rescues, traffic accident investigations and other uses not involving the examination of private dwellings may continue.

      The other pivotal qualifier is whether the device is in general public use.

      The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. California v. Ciraolo, 476 U.S. 207 (1986).  It is unclear when a technology will be considered in general use and, as the dissent argued, such qualification will inject potential uncertainty into the constitutional analysis.  In response, the majority applied the traditional subjective expectation of privacy that society recognizes as reasonable test, as applied in Ciraolo.  In that case, the court found that in an age where private and commercial flight in public airways is routine, it would be unreasonable to expect that marijuana plants would be constitutionally protected when they could be observed with the naked eye from an altitude of 1000 feet.  The court went on to note that thermal imaging is not routine.

     One may assume that flashlights, binoculars, or zoom lens cameras are in general public use, but that most of developing police technologies are not.  Still, whether the test will be that the technology is available for purchase by the general public or whether the technology is merely something that everybody knows about and most people have, or something in between, will have to be developed on a case-by-case analysis.

Majority Quotes:

1. The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.  Katz v. United States, 389 U.S. 347 (1967).

2. A Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.

3. At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.  Silverman v. United States, 365 U.S. 505, 511 (1961).  With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.  See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); Payton v. New York, 445 U.S. 573, 586 (1980).

4. While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homes an expectation of privacy exists as reasonable.  We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected areas constitutes a search.

5. As we observed in California v. Ciraolo, 476 U.S. 207, 213 (1986), [t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.  In the home, our cases show, all details are intimate detail, because the entire area is held safe from prying government eyes.

6. The Fourth Amendment draws a firm line at the entrance to the house,  Payton, 445 U.S., at 590.  That line, we think, must be not only firm but also bright which requires clear specification of those methods of surveillance that require a warrant.

7. Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant.

Dissenting Quotes:

1. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.  California v. Ciraolo, 476 U.S. 207, 213 (1986).

2. The only conclusions the officers reached concerning the interior of the home were at least as indirect as those that might have been inferred from the contents of discarded garbage, see California v. Greenwood, 486 U.S. 35 (1988).

3. Since what was involved in this case was nothing more than drawing inferences from off-the-wall surveillance, rather than any through-the-wall surveillance, the officers conduct did not amount to a search and was perfectly reasonable.

4. The newly minted rule encompasses, obtaining [1] by sense-enhancing technology [2] any information regarding the interior of the home [3] that could not otherwise have been obtained without physical intrusion into a constitutionally protected area [4] at least where (as here) the technology in question is not in general public use.

5. It is clear, however, that the category of sense-enhancing technology covered by the new rule, ante, at 6, is far too broad.  It would, for example, embrace potential mechanical substitutes for dogs trained to react when they sniff narcotics.

6. Although the Court is properly and commendably concerned about the threat to privacy that may flow from advances in the technology available to the law enforcement profession, it has unfortunately failed to heed the tried and true counsel of judicial restraint.  Instead of concentrating on the rather mundane issue that is actually presented by the case before it, the Court has endeavored to craft an all-encompassing rule for the future.  It would be far wiser to give legislators an unimpeded opportunity to grapple with these emerging issues rather than to shackle them with prematurely divided constitutional constraints.

California v. Ciraolo, 476 U.S. 207 (1986)

      That the area is within the curtilage does not itself bar all police observation.  The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.  Nor does the mere fact that an individual has taken measure to restrict some views of his activities preclude an officers observations from a public vantage point where he has a right to be and which renders the activities clearly visible.

     In Dow Chemical Co. v. United States, 476 U.S. 227 (1986), decided on the same day as the instant case, the Court held that the Environmental Protection Agency did not violate the Fourth Amendment when it used an aerial mapping camera to photograph a 2,000 acre industrial manufacturing complex.  The Court cautioned, however, that it was not deciding whether or not aerial observation of curtilage through the use of sophisticated modern technology, not generally available to the police or public, which might reveal details not otherwise visible to the naked eye, violated the Fourth Amendment.

United States v. Dunn, 480 U.S. 294 (1987)

     The Court first reaffirmed the holdings of its earlier cases, Hester v. United States, 265 U.S. 257 (1924) and Oliver v. United States, 466 U.S. 170 (1984) that the Fourth Amendment protects not only a persons home but also the curtilage of the home and that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.

     The Court then stated, at page 335, that in each case where a claim of curtilage violation is alleged, the issue to be determined is whether the area in question is so intimately tied to the home itself that it should be placed under the homes umbrella of Fourth Amendment protection.

     The Court, at pages 301, stated that curtilage questions are resolved by analyzing the following four factors.

the proximity of the area claimed to be curtilage of the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.  (Citations omitted.)

Facial Recognition

     The plain view doctrine provides for an exception to the general rule that an officer must have a search warrant to seize evidence in a constitutionally protected area.  When an officer, for whatever reason, is legally in such an area and views something which he has probable cause to believe is either evidence, fruits or an instrumentality of a crime or contraband, he may seize such item without first procuring a search warrant.  Arizona v. Hicks, 480 U.S. 321 (1987).

     FACIAL RECOGNITION PROCEDURE:

• Face recognition software is within a computer system locating in and existing in CCTV Equipment.
• As a police officer monitors a crowd using the video surveillance, the software scans the crowd.
• Software automatically extracts a facial image and analyzes points of the face.
• The software does not consider sex, race, hair color, facial hair, or skin tone, in its calculations.
• If the scan subject is not located in the database, the image from the video camera is not retained in the system.
• When a match is found, the image is retained for evidentiary purposes.
• If a match is detected, an audible alarm is sounded to alert the monitoring police officer.
• The officer views on a single screen both the image captured by the camera, and the image stored in the database.
• If the police officer determines there is a match, he or she relays this information to an officer in the immediate area.

     Officers responding should consider this information to amount to reasonable suspicion, not probable cause.

     A police officer can stop, detain, for a reasonable period of time, and question a person even though the officer lacks probable cause to arrest.  If the officer has a reasonable suspicion that the person is either engaged in or is about to engage in criminal behavior.  Terry v. Ohio, 392 U.S. 1 (1968).

Will Failure To Procure New Technologies Lead To Successful Municipal Liability Claims Or Increased Liability Claims?

Plakas v. Drinski, 19 F.3d 1143 (7th Cir. 1994)

     Plaintiff was arrested for driving while intoxicated.  While being transported, he fled to the home of his girlfriend's parents.  In spite of the fact that he was handcuffed he struck an officer in the arm with a fireplace poker and fled into a wooded area.  There he approached two officers with the fireplace poker and was shot and killed.  Plaintiff argued that the officer had a duty to use alternative methods short of deadly force to resolve the situation before him.  The court did not agree, finding that the officer's actions were reasonable.  The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases.  The only test is whether what the police officers actually did was reasonable.

Jensen v. City of Oxnard, 145 F.3d 1078 (9th Cir. 1998)

     The SWAT team stormed a two-story townhouse to serve a search warrant, on what turned out to be an unoccupied residence.  Officer Jensen threw a flash-bang grenade from a staircase onto the second floor landing.  He and several other SWAT team members, including Sergeant Christian, went up to the second floor.  During the turmoil, Christian mistook Officer Jensen for a gun wielding occupant and fired three rounds from his twelve gauge shotgun, killing Jensen.

     The court found that Sergeant Christian was not entitled to qualified immunity since the allegations in the complaint, if proved, would amount to unreasonable use of force.  The claim alleged that Christian shot Jensen three times in the back from a distance of three feet, in conditions in which he should have been able to recognize the figure he was shooting was a fellow officer.

     The court also found that the City could be held liable if officials knew that Christian was likely to inflict a constitutional injury, or if their practice and policy showed a deliberate indifference to the danger that such an individual posed.  The complaint specifically alleged that high-level supervisors assigned Christian to the SWAT team, knowing that he was using mind-altering drugs, including Phenobarbital and other substances.  The complaint further alleged that the City failed to adequately train or equip members of the SWAT team; failed to control members of the SWAT team with a known propensity for violence and; failed to investigate SWAT team members for potential substance abuse and/or mental problems.  Such allegations provided a sufficient link between the policy-makers decision and a particular injury alleged to support a Section 1983 claim.  (Board of the County Commrs v. Brown, 520 U.S. 397 (1997)).

Spencer v. Knapheide, 183 F3d 902 (8^th Cir. 1999)

     Plaintiff, a pre-trial detainee suffered injuries rendering him a quadriplegic after he was placed with his hands cuffed behind his back in a police wagon and was thrown forward into the bulkhead of the passenger compartment.  There were no seatbelts or other safety restraint devices installed in the compartment.  The Boards decision to use patrol wagons without seatbelts was based on its concern that the individuals transported in the wagon, even those who were handcuffed, could use the seatbelt as a weapon to harm an officer, other passengers being transported in the wagon, or even themselves.  Plaintiff claimed that the Board maintained an official policy of purchasing and using patrol wagons that were inherently unsafe.  The Appellate Court affirmed the District Courts decision that the Board was not deliberately indifferent to plaintiffs constitutional rights.

LESS THAN LETHAL USE OF FORCE TECHNOLOGIES

Will Use Of Less Lethal Technologies Eliminate The Risk Of Liability?

Deorle v. Rutherford, 242 F.3d 1119 (9^th Cir. 2001)

     Mrs. Deorle dialed 911 when her husband lost control of himself and began banging on the walls and screaming.  She removed herself and her children from the home.  Approximately thirteen officers responded securing the area while awaiting the arrival of the Special Incident Response Team.  Officer Rutherford, who had been at the scene for thirty to forty minutes, set up a position where he observed Deorle for about five to ten minutes.  He observed Deorle carrying an unloaded, plastic crossbow in one hand and a bottle of charcoal lighter fluid in the other.  Rutherford, who was armed with a 12 gauge shotgun, loaded with less lethal beanbag rounds, decided to shoot Deorle when he passed a small tree approximately thirty feet away.  Prior to the time of the shooting, Deorle had followed the officers instructions and dropped a number of objects when being ordered to do so.

     When Rutherford shouted at him to drop the crossbow, he discarded it.  Without warning Deorle to stop or warning him that he was going to be shot, Rutherford aimed at his torso, striking him in the face resulting in multiple fractures to his cranium, loss of his left eye, and embedded lead shot in his skull.

     The court determined that although Rutherford admitted that the rounds could have lethal capabilities at thirty feet and are potentially lethal up to fifty feet, the cloth-case shot appeared to fall short of deadly force as defined by statute to be that force which is reasonably likely to cause death.

     The court ultimately determined that Rutherfords use of force was unreasonable and that he would not be entitled to qualified immunity.  This is not a situation that will provide for the type of latitude allowed by Graham as Rutherford was not a lone officer suddenly confronted by a dangerous armed felon threatening immediate violence.  He also did not attempt to evade arrest, stayed on his own property and did not pose an immediate safety threat, as he had responded to the officers instructions and did not attack anyone.

     Also, Deorle might never have passed the predetermined spot had Rutherford given him warning or commanded him to halt.  At the time of the shooting Rutherford was confronted by an emotionally disturbed individual who was possibly intent on committing suicide.  He was unarmed and walking towards Rutherford at a normal gait.  No officer could reasonably have believed that under these facts, this shooting, which was reasonably likely to cause serious physical injury, could constitute reasonable force.

Will Failure To Have Or Use Any Less Lethal Weapon Lead To Successful Section 1983 Claim?

Hainze v. Richards, 207 F.3d 795 (5^th Cir. 2000)

     Police received a 911 call requesting transport of Hainze who allegedly was suicidal, under the influence of alcohol and antidepressants, carrying a knife and threatening to commit suicide.  Officers arrived at a convenience store and observed Hainze holding a knife and not wearing shoes despite the cold temperature.  The officer drew his weapon and ordered Hainze away from a pickup truck he was standing next to.  Hainze responded with profanities and began walking toward the officer.  Two other officers also drew their weapons.   Officer Allison twice ordered Hainze to stop, but he continued to advance within 46 feet at which point Allison fired two shots into his chest.  Approximately 20 seconds elapsed from the time the officers arrived till the shooting.

     Hainze was convicted of aggravated assault.  In addition to claims against the officers he also brought official capacity claims for failing to adopt or enforce policies to adequately handle individuals who are mentally ill in a crisis situations, as well as failure to establish a policy or train deputies to protect the well being of mentally ill individuals. Hainze alleged that, Allison never engaged him in conversation to calm him, never tried to give him space by backing away, never attempted to defuse the situation, never tried to use less than deadly force, and never attempted to create any opportunities for the foregoing to occur.  The court rejected these allegations.

(We hold that Title II does not apply to an officers on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officers securing the scene and ensuring that there is no threat to human life.  Law enforcement personnel conducting in-the-field investigations already face the onerous task of frequently having to instantaneously identify, assess, and react to potentially life-threatening situations.  To require the officers to factor in whether their actions are going to comply with the ADA, in the presence of exigent circumstances and prior to securing the safety of themselves, other officers, and any nearby civilians, would pose an unnecessary risk to innocents.  While the purpose of the ADA is to prevent the discrimination of disabled individuals, we do not think Congress intended that the fulfillment of that objective be attained at the expense of the safety of the general public.)

See Also, Gohier v. Enright, 186 F.3d 1216 (10^th Cir. 1999).

Will Officers Ineffective Use Of Or Failure To Use Alternative Less Lethal Weapon Result In Liability?

Medina v. Cram, 252 F.3d 1124 (10^th Cir. 2001)

     When a bail bondsman went to Mr. Medinas house to take him into custody, Mr. Medina claimed he had a gun, causing the bail bondsman to call the police.  Medina refused to leave the house and began using cocaine and drinking rum.  Officers spoke to him by phone, and he said he needed time, had a gun and expressed suicidal thoughts.  When he emerged from his house, he had his right hand wrapped in a towel concealing a staple gun which officers believed was a firearm.  He was first shot with non-lethal beanbag rounds and then attacked by a dog.  When these efforts failed, an officer followed him as he walked down the street hoping to knock him to the ground.  The attack dog was released a second time causing Medina to fall to the ground exposing what the officers believed was a gun.  Two officers within a distance of eight to twelve feet fired five shots injuring Medina.

     The appellate court overturned the district courts denial of summary judgment, finding the officers use of force to be objectively reasonable.  They rejected contentions that the officers acted unreasonably in creating the need to use force.  In order to create liability based on prior acts, an officers conduct before the suspect threatens force is relevant, provided it is immediately connected to the seizure and a threat of force.  Also, the conduct creating the need for force must rise to a level of recklessness rather than negligence.

     The key issue here was the officers exposing themselves to danger rather than taking cover.  The court found that even if they determined that the officers failure to take cover contributed in a need to use force, such actions would not arise to the level of reckless or deliberate conduct.  Finally, the experts affidavit that the officers use of force did not conform with accepted police guidelines and practices was not sufficient since claims based on violations of state law and police procedures are not actionable under Section 1983.  To consider the experts assertion regarding the failure to use pepper spray and other tactical measures, would require the court to evaluate the officers conduct from a 20/20 perspective of hindsight rather from the perspective of an officer making a split-second judgment on the scene.

SIX REASONS GIVEN FOR NOT PURCHASING NEW TECHNOLOGIES

1. Training officers is too costly.

2. Fear of liability if they purchase technology, but dont have it available when needed.

3. Lack of knowledge about technologies.

4. Lack of trust in reliability.

5. Cant carry so much.

6. Costs too much.

SOLUTIONS

1. Provide training to department trainers so they can train their own officers.

2. Encourage manufacturers not to create artificial certification requirements.

3. Independently establish certification

4. Train training officers that the fear of liability re: unavailability is unfounded.

5. Train and maintain communications with training officers re: new technologies.

6. Train and demonstrate reliability.

7. Expose decision makers to a number of similar technologies at the same time so they can compare and evaluate cost and practicality.