\

MANNING&KAss
ELLROD, RAMIREZ, TRESTER

LLP

CRITICAL LAW ENFORCEMENT LEGAL ISSUES:
USE OF FORCE, ECDS AND ICDS- FORMULATING A PLAN

Prepared for:

BENICIA POLICE DEPARTMENT

BENICIA, CALIFORNIA
May 30,2012
Prepared by:

Mildred K. O'Linn
Attorney at Law
mko@manningllp.com

Los Angeles Office

Orange County Office

San Diego Office

San Francisco Office

Arizona Office

801 S. Figueroa St.

19800 MacArthur Blvd.

550 West C Street

One California Street

6909 E. Greenway Parkway.

15th Fl.

Suite 600

Suite 1900

Suite 1100

Suite ZOO
Scottsdale, AZ 85254

Los Angeles, CA 90017

Irvine, CA 926U

San Diego, CA 92101

San Francisco, CA 94111

Tel: (213) 624-6900

Tel: (949) 440-6690

Tel: (619) 515-0269

Tel: (415) 217-6990

Tel: (480) 477-5269

Fax: (2J3) 624-6999

Fax: (949)

474~6691

Fax: (619) 515-0Z68

Fax: (415) ZI7-6999

Fax: (480) 609-4468

NPS011017

Critical Law Enforcement Legal Issues:
Use of Force, ECDs and ICDs-

Prepared By:
Attorney Mildred K. O'Linn
~lp.CQI!I

Manning & Kass, Ellrod,
Ramirez, Trester

The New Global WaJrntirno_·
Challenges Facing Af!l•ent:zes.
• Non-violent people should not be
• People on alcohol, drugs, serious psych<J1logica!
distress and the mentally ill
without injury
• UseLeastAmountofForce
• Cause Minimallnjuxy or None
Patient, Understanding and Tolerant
• Know difference between
- intentional immediate threat of harm/fleeing felon
- individual who needs medical or mental health crisis
assistance

MEDIAATTENI10NWU.LALWAYS
FOCUS ON THE "BAD COP"
SYNDROME NATIONWIDE
DEPRESSED EC<NOMY INCREASE
IN CRIME, INCREASE IN PUBUC
SYMPATHY FOR LAW BREAKERS,
INCREASED MOTIVATION FOR
CIVIL SUITS
INCREASE IN FEDERAL
INTERVENTIONAND OVERSIGIIT
AGE OF IMMEDIATE
INFORMATION AND WIDESPREAD
DISTRIBliTI<N- U-Tube, BLOGS,
Twitter

The Numbers are Against Officers
Societal Problems in U.S. lnftuencing Force
Drug Abusers
- 2009 8. 7% of populatiou (21,800,000)
- 2008 8.0% of populatiou
- 2006 20,357,000
- 2004 7.9% of population ( 19,100,000)
- 2004 1,997,993 drug caused emergency room visits
Serious Psychological Distress (SPD)
- 2007 10.9% of adults (23,400,000)
- 2004 9.9% of adults (21,400,000 SPD)
DUls (2006-2009):
- 30,600,000 DUI alcohol in past year (13.2% of 16+
population)
• Highest rate -Wisconsin - 23.7% of population
- 10,100,000 DUI illicit drugs in the past year (4.3% of 16+)

Policing and the mentally ill
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NPS011018

• For the 1" time in
years more officers
died from firearms
than traffic related
incidents.

Average$$ per Officer

to Settle Use of .
• Denver - $697 per year per officer
• Philadelphia - $1,360 per year per officer

• I :30 OFFICERS IN THE UNITED
STATES ARE BEING SUED

• Los Angeles - $2,200 per year per officer
• Chicago - $2,930 per year per officer

• 40-45% OF THOSE CASES INVOLVE
ALLEGATIONS OF EXCESSIVE USE OF
FORCE

NPS011019

Starting Offon the

Controlling

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Questions of

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The Loss of

NPS011020

How Will They Be .

The Video

• When presented with a "controversial"
action by officers are you prepared to
properly articulate the appropriate
standard by which to judge their actions?

• Clear concise articulation of the criteria for
evaluating an officer's use of force at the on-set
of the public's focus on the events is crucial to
educate the community prior to the initiation of
an agenda by the media or others.

-·-

Basic 4'" Amendment Force
Key Graham

"Objectively Reasonable"
Whether the officer's actions are "objectively
reasonable" in light of the facts and
circumstances confronting the officer without
regard to the underlying intent or motivation.
Graham v. Connor (U.S. Sup. Ct. 1989)

Officer/Subject Fq_c;tors:
• Number of Officers

vs~ Su~p:~c:Ja)

• Severity of the crime at issue
• Whether the suspect poses an immediate
threat to the safety of the officers or others
• Whether suspect is active! y resisting arrest
or attempting to evade arrest by flight
• Split-second judgments in circumstances
that are tense, uncertain, and rapidly
evolving about amount of force necessary in
particular situation

Eight Major Areas
Capt. Gordon

• Proximity to Potential Weapons

"High Risk/Low Frequency Events"

• Age; Size; Gender; Relative Strength
• Special Knowledge or Skill Level

•
•
•
•
•
•
•
•

• I1Uury or Exhaustion
• Mental Illness or Drug Usage
• Prior Contacts
• Environmental Factors

Vehicle Operations
Use of Force
Use of Deadly Force
Taking People Into Custody
Forced Entries
Special Relationship Situations
Job Based Harassment
Ethics/Integrity Issues

NPS011021

Risk Management:
Of/Duty

Concern for
•
•
•
•
•

Overdetention
Suicides, medical care and medication .
Citizen complaints
Policy compliance and documentation
Special relationship situations _ .......,

• Alcohol

• Sex
• Guns

• Sex

• Use of force tceUeiCiractiom,inna~e•ilhllrbanc=s)

• Drugs

•
•
•
•

• Sex

Housing conditions
Intake processing, verification and documentation
Job Based Harassment
Ethics and Integrity Issues

• Secondary Job

• Sex
• Fast Cars

Whllalt'& true that Ti11!8rl havo prev.ent&d
thOu.alllndt of llto~or·deat.h atqndofta

between perp' an4 pollee, they often urve
•• acrutctl for cepe who want to liUppl'ltu
cuopootn without bnwlldng o owont. ft•r• aro

a rew cucampiOJaf when cops may have b11en 011
on ha'tv pulling tl'te Ta&er1rlgg,;._~

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book ond Olhorpolleo~m~n sko<:~klng l'llrn wolth

... Loui•o .JonOa:, 11 B7·your-old grandmottter
In K•"•.•• Cl1:y, Mlaa .. ~rl, pulled "P to hor
flou•• one night In J~n• 200.q, Shu honked
•I "! Po:Uoo cru!•or no•r her drlvow•v and
waa'Sivon lllt1:1akot: ~ono~ .,..•• uncogperatlve~
ao·nd ptiohod tho dffle>ctr0 whco flrwd hfa Ta&er.
Jone•·•nd horhu•b•nd w•r• l•tor 11Warded
$31G,OOO In d•n•ogeu.

oT•••r••..,.nyo• ..•v.ntlmosclurlnon
poti(IOCj of thlrt-n mlnut••· Flourat'a '"""~"it
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.. ln2DO.q. whenGhewes seven months
pregnant, Malalka Brooke woa drhdna her

son to sohoolln Seattlo, Aftar belnv pullad
oV•r'for golna:S2 mph fn a 20-mph ll:one,

aho doclhled to rilgn· tho GpogdJng 'lcket,&o
a_rnoaro nrroarerf.har. Whon nl'\e raru•ad to

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her car, ahe we..a.tased ttuuu tln1oD, an
thO thigh, nuok, and shoulder.

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Three Types

• NEGLIGENCE ACTIONS
• INTENTIONAL TORTS
• CONSTITUTIONAL TORTS

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NPS011022

Negligence
High Speed Pursuits
Wrongful Death
Overdctention
Mishandled Traffic
Accidents
• Improper Traffic
Direction
•
•
•
•

•
•
•
•

Assault & Battery
False Arrest
Trespass
Malicious Prosecution

• Defamation
• Intentional Infliction
of Emotional Distress

• Common Defenses:
- Contributory
Negligence; ·
- Comparative
Negligence;
- Assumption ofRisk
-Statutory
Immunities

..,

• Common Defenses:
-Self-Defense
- Justification
-Consent

• Examples:
-Gonzales
- Washington

•
•
•
•

Public Officer/Official
Acting Under Color of Law
Violates a Constitutional Right
Proximate Cause of an In jury
-Examples: Sanchez, Jackson

NPS011023

$750,000Aitorlleys' Fee Award in Cadfomla

Pepper spray Cllllic

Allli·loggiq protcotA;n wbo oucd Humboldl County,
of popper spray daring
1997 oionvioiCotdemonsl!alioosbavoagreedtoa$750,000

Cs!ilbmia ollidals over !lie ue

altornayl'feoso~Thoaetllementamountisaliltle

IJlOre lbaD ooe-d>inl of the $2 million that · - · had
•Q118htoa.bebaliof eight ,.,.,W,Iont
had
liqu;dpepperspray swabbed in!heir eyes after they chained
lllemselws togelher lo protellloagiogpocliCO& The case
,... tried tiJnjc tiiDca in SOD Fnodsco feclcnl OOUEt bcfon:
ajury waa ableli> reach a -.1iCt in April. fiDdiDg mat tbc
u .. ¢peppet·spray was oxceasivo use of fon:o. The jury,
- · awanled tbeeighl plainlifrs onl} $1 eathin dam••• San flmxisco attomcyo Dom>ia Ouminjbam. Robert Bloom, 8lld, Gotdou Kaupp wen: ODIODJ the lawyers
who ropmoeated the plalntiffil.

_....-who

$210,000 Settlemeut in Oaklmid
DemDDStratlon Case
Jn t:le<:ombor, 200.'1, 1bo City of OaldaDcl aaree<1 to pay
$210.000 to settle a lawsuit filed by a woman, Sri Louise
Coles, who wils ildom! when police filed a bllg of lead
sbot at her head at an anti-war demoDstration, inflictin& a
golfball-oiz:e well to bcr jaw. Coles was one of at .least 58
people who were injured at an April 7 t 2003, &:m.lmtra·
lion a1 lbo Port of Oaklaml qainst lbc Iraq War. Oakland

police filed wooden bulloP. sling ball greoades ODd lllwl•
filled beanba8:l atprcte81Crs.Atleast46aftbo victims bave
sued the city, and settlements. bave been reached iD .more
tban twmty of the casell. 'Ihe OoklaDd Police Departnwnt
has since revised it:s poli.oies to cnaure that sw:h. tacti<:s
aren't used indiACriminarely.
·

• Chapter 42 of the United States Code
• Section 1981: Racial Discrimination
• Section 1983: Deprivation of Civil Rights
under Color of Law
o Section 1985(3): Conspiracy to Violate
Civil Rights
o Section 1986: Failure to Protect
o Section 14141: Pattern and Practice

U.S. v. Powell: Terry Frisk
U.S. v. Powell: Terry

Driver DUS- asked passengers if had valid DLs

• Powell back-seat passengerDUS +caution for "priors" for armed robbery

"Solely" on caution data, officer ordered Powell
out of the car and conducted a pat-down.
• During pat-down Powell attempted to flee =
caught+ HC
Backpack from

the back seat =handgun = arrested
• Powell searched incident to arrest = crack cocaine

Reasonable Suspicion: Armed an,rtlJ'!lllillf!I'OUs?
Sole basis for frisking was caution data re
robbciY- Did not justify a reasonable ... .,niei,nnth~
armed and dangerous the night oftbe traffic stop.·
Caution data can be relevant in establishing reasonable suspicion.
In most cases a prior criminal record is not, by itself, sufficient to
create reasonable suspicion. Before the pat-down:
- completely cooperalive and friencly with the officers
- not threatening or evasive cond.Jct
- did not display any of the typical signsusually associated wilh illegal or
dangerous aGiivity
- Significant iha! during the traffic stop, prior ID receiving the caution data, an
officer ldd Powell !hat he was free to leave if he ,..,led ID.

Court held: Pat-Down out and all evidence seized duriog traffic stop
suppressed.

NPS011024

Kentucky v. KingKnock Knock..
• LEOs follow suspected drug
apartment - Smelled marijuana;
• Knocked loudly; Announced "Police" and
heard noise inside the apt consistent with
destruction of evidence;
• Issue was Exigent Circumstances Rule vs.
Police-Created Exigency Doctrine (cannot
create the exigency)

Forcefully Knocking and
Loudly Announcing
• Warrantless Searches is reas
exigent circumstances when LEOs
create exigency by engaging or threatening
to engage in conduct in violation of the 4th
Amendment
• State court additional requirement that if
reasonably foreseeable that LEOs conduct
(ie knock/"Police") would create exigency
(ie. Sounds like destroying evidence) then
warrantless search improper

Chapter 18 of United States Code
• Section 241: Conspiracy to Violate Civil Rights
• Section 242: Violate Civil Rights

usmoJcwuR~h~Dwhwn

Putting
• Fiscal year 2000
- 45 attorneys reviewing civil rights
investigations
- 65% involve allegations of"color oflaw''
violations
- 8 to I 0 thousand result in 2500 preliminary
investigations
- 20% (560) warrant substantial investigation
-2.5% (70) grandjwy indictments
- 30 to 40 LEO convicted annually

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NPS011025

2008 -Former LAPD and Former LBPD
Found Guilty of Conspiracy to

• Jury found former LAPD Officer
brother, fonner Long Beach Officer guilty of:
.., conspiring to violate civil rights;
- conspiring to possess narcotics with intent to
distribute;
- possession of narcotics with intent to distribute.
- one was also found guilty of several firearm
offenses and deprivation of rights under color of
law.

8

The FBI, along wffh its law enforcement partners,
will continue to root out the small
of
sworn personnel that act

Civil Rights Division comniittlld ..
enforcement of the federal criminal
statutes • laws that prohibit willful act$
misconduct by law enforcement officials.
• In Fiscal Year 2007, the Criminal Section
convicted the high est number of defendants in its
history, surpassing the record previously set in
Fiscal Year 2006.
• DOJ has compiled a significant record on
criminal civil rights law enforcement misconduct
prosecutions in the last seven years. During the
last seven years, the Criminal Section obtained
convictions of 53% more defen dants (391 vs.
256) in coloroflawcases than the previous seven

o

• "Every person who under color of any
ordinance, regulation, custom or usage... subjects
or causes to be subjected, any citizen of the United
States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges
or immunities secured by the Constitution and
laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper
proceedings or redress ..."

• One faces a sentence of up to life ·•
imprisonment and a significant fine.
• Second faces a sentence of up to 50 years
imprisonment and a fine.
• Other law enforcement officers from LAPD,
LBPD, LASD and CDCR have previously
plead guilty to federal crimes in connection
with the conspiracy.

Jury awards Long Beach officers

$4Min
Ol/14/1008 -A jury awarded S4 ·
Beach officers wbo claimed they were
SDitcbes and denied promotioWI after they reported
members of a port se~:~~rity team were buntiug lobsters
instead of terrorists.
The three officers filed a civil lawsuit in July 2006,
alleging other members of the departmen~s Port Security
Team of misconduct while on the job in what police brass
called "Lobstergate," because lobster shells were found in
one oftbe squad's boats.
After three days of deliberations, the jury awarded
$1.16 million to Sgt and $1.56 millioa and $1.36 million
to Officers.

• The "Deep Pocket" Case
• U.S. Supreme Court decision holding
that an "Agency" is a "Person" under
the Civil Rights Statutes
• Governmental entity liable for "policy,
practice or custom" that inflicts injury
- Samoan Bridal Shower case

NPS011026

Policy, Practice or
• Policy-- Written ordinances,
memorandums, departtnent rules
direct orders by a final policymaker, up<::r111mg
procedures and training manuals adopted by the
agency
• Practice or Custom -- Persistent widespread
pattern of unconstitutional conduct with actual or
constructive knowledge of a responsible
policymaker
• Key Words: Habitual, well-settled or officially
tolerated

Individual Liability:
Officers, Supervisors
• Officers with Immediate Contact:
Trespass
• Misconduct under Color of Law= Civil Rights
• Actions by Policymaking Officials
Officers Present Who Fail to Provide Protection
- "Bystander" liability requires contemporaneous
knowledge of wrongful conduct and an
opportunity to intervene u.s.•. "'~
• Breach of Standard of Care =Negligent Hiring,
Training, Supervision, Retention

Penal Code§ 851.5
Right of
Person to Make
• Actions by Policy Making '-"•J""""""
• Unconstitutional Ordinances
• Affinnative Policy
• Implicit Authorization of Harassment
• Failure to Correct Unconstitutional
Condition
• Inadequate Hiring, Training & Supervision
• Violation of Statutory Duty Chinov.Carlo

(a) Immediately upon being booked, and,
where physically impossible, no later than
hours after arrest, an arrested person has the right
to make at least three completed telephone calls,
as descnbed in subdivision (b).
• The arrested person shall be entitled to make at
least three such calls at no expense if the calls are
completed to telephone numbers within the local
calling area.

Penal Code§ 851.5
• (b) At any police facility or place where
detained, a sign containing the following in£omtatitJn in
bold block type shall be posted in a conspicuous place:
• arrestee the right to free telephone calls within the local
dialing area, or at his own expense if outside the local
area, to three of the following:
• (1) attorney /public defender .... phone call shall not be
monitored, eavesdropped upon, or recorded.
(2) bail bondsman.
• (3) relative or other person.

(c) If, upon questioning during the
process, the arrested person is identified as a
custodial parent with responsibility for a minor
child, the arrested person shall be entitled to
make two additional calk at no expense if the
calls are completed to telephone numbers
within the local calliog area to a relative or
other person for the purpose of arranging for
the care of the minor child or children in the
parent's absence.

NPS011027

(d) These telephone calls shall be el!iv1~1llil
immediately upon request, or as
practicable.
(e) This provision shall not abrogate a law
enforcement officer's duty to advise a suspect
of his or her right to counsel or of any other
right.
(f) Any public officer or employee who willfully
deprives an arrested person of any right
granted by this section is guilty of a
misdemeanor.

Welfare and Institutions Code§ 627.
Notice to Parent 01;
Rightto Make TPIIinlt
• (a) When an officer takes a minor
ore a
probation officer at a juvenile hall or to any
other place of confinement pursuant to this
article, he shall take immediate steps to
notify the minor's parent, guardian, or a
responsible relative that such minor is in
custody and the place where he is being
held.

Welfare and Institutions Code§ 627.
Notice to Parent
Rightto Make
• (b) Immediately after being taken

confinement ... and, except where nh,,~;,;gnv
impossible, no later than one hour after ... taken into
custody, the minor shall be advised and has the right to
make at least two telephone calls from the place where
he is being held, one call completed to his parent or
guardian, a responsible relative, or his employer, and
another call completed to an attorney.... Any public
officer or employee who willfully deprives a minor
taken into custody of his right to make such telephone
calls is guilty of a misdemeanor.

s
• Responsible for Enforcement of PoliCies
• Specific Theories Include:
- Present on scene and acquiesces or directs the
action
•

Hampton v. Hualwl. (c:onspinqo)

-Failure to train subordinates
•

Fcb~~&-RodriFc:c '1. ~t.bron(mclllal.lyilllc~~~:cuiverlll"':e)

-Failure to control subordinates with history of
misconduct

_ _ _.. y ____________ _

--------·-::;:..:-··········

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·-·---·-·----

--'

.......-..

---~----------··-------------~

-- · - - -

Elements of
• Supervisor had actual or constru
that subordinate was engaged in conduct that
posed a pervasive/unreasonable risk;
• Supervisor's response to that knowledge was
deliberate indifference or tacit authorization
• Affirmative causal link between supervisor's
inaction and injury.

• BnndiJJIY.Holt;[Mu v.Cdyq-f[A

NPS011028

• No Absolute Immunity unless
• Qualified Immunity:
- Whether reasonable officer could have
believed actions were lawful in light of
clearly established law and the information
the officer possessed? ~~o...... ..,.u•
- Officer permitted to make reasonable
mistakes even as to what the law requires
Saucicrv.Kdi:

- Must stay abreast oflegal decisions .............,._,

• Compensatory Damages
Purpose is to make the injured party whole
• Punitive Damages
Purpose is to punish and deter future
conduct of a similar nature = Personal
responsibility of individual
• Only Wisconsin (mandatory) and
California (discretionary) permit payment
of punitive damages by agency

•
•
•
•

GoodFaith
Probable Cause
Self-Defense; Justification; Consent
Assumption of the Risk

• Contributory & Comparative Negligence
• Acting upon a Valid Warrant
• Written Release

• "Prevailing Party"
• Pro Se Litigant Not Entitled to Fees
• Rivera v. Citv of Riverside
- $33,000 in damages awarded by jury;
$245,000 attorney's fees granted by District
Court.
• Civil rights defendants may make lump sum
settlement offers which includes attorney's fees
and waivers thereof.
• Do not get both lodestar and fee enhancement.

Bad Reports + Missing Evidence=
Punitive
• Whiteleyv. Warden:
-If it is to the agency's benefit and it is not
in writing it did not happen.
• Bad Police Reports have caused far more
litigation than Bad Police Work!

NPS011029

Recorded Media:

Headline: Oakland police officer
videotapes killing
• Thought to be the first time ·a r.Jif"m-ni·•·nhlli<'>,'li
wearing a video camera in a deadly cOJ:Ifronta:tioii
Oakland officer wearing video camera during OIS with armed
suspect during a struggle last month
- Debate: who should be allowed 1D view the film and when.
- OPD policy ' !>'' oflicen con review video, bll officerslatiDmeys were not
allowed to view lhe video before giving statemmts.
- There is no policy about who outside the department can view thevideo.

OPD publicized devices would "streamline the truth-finding
process by providing the best evidence" in crimes or attacks
against officers and hopefully "provide an additional layer of
accountability and trust between the police and the public."

Recorded Media Review
Civil Rights Attorney John Burris:
Not releasing the video in a timely manner and
and their attorney view it before providing statements hurts police
credibility.
The family and the public "should have access sooner than later,"
according to Burris. If there is early access, "it can (cause) unrest
When people don't know, it can cause uncertainty and you expect
the worse. The longer you wait, it arouses suspicions about the
tape itself and the maintenance of the tape."
Allowing officers to see the video before giving statements, he
concerned. It
said, "is not good police work as far as
undermines the integrity of the process. An important component
here is the credibility of all parties present. If other independent
witnesses cannot see the tape, then the officers should not either."

• Those familiar with photography said .
size of the camera lens, the closeness and !I"tri¥emen1:S
the man and the officer during the struggle, the tape
might not provide a clear showing of the actual shooting.
• OPD says that ''just because this was captured on (video)
doesn't mean it's the entire picture" of what happened.
"It's just one piece. I think it's important to keep in mind
that this is a tool and there are other factors to consider,
like the officers' training and what is processing through
their mind."

•

.

-

rm

What Do You Really
April 25, 2011 Force Science News®
The Force Science research team explored officer
through a unique set of experiments in Canada September 20 I 0 significant conclusions included:
"The legal system puts a great deal of emphasis on witness
accounts, particularly those of professional witnesses like police
officers." After a violent confrontationit is commonly believed"
that officers are capable of recalling relevant particulars, "such as
subject position, number of blows. time sequences, verbal
comments, and the position of colleagues .... Policing is quite
unique within the cognitive field, since officers are [expected] to
operate in a dual-task mode of...taking action whilst
remembering.. .information."

• "If investigators and force reviewers
understand the implications of this study,"
Dr. Bill Lewinski cautions, "an officer's
memory errors or omissions after an intense
physical struggle may unjustly affect his or
her credibility. We think we have a lot of
attentional resources working for us at all
times, but in reality we don't."

NPS011030

• Inadequacy of training may
basis for ci vii rights liability only where the
failure to act amounts to "deliberate
indifference" to the civil rights of persons
with whom police come into contact

• Constitutional right violation n,,,n,.,,,;:(f

• Recent Cases indicate a trend:

• Policy must be the moving force behind the
constitutional rights violation

- Canton case no longer merely a discovery tool
- FIT claims getting before juries

• Failure to train occurred
• "Deliberate Indifference" to training needs
• That failure to train caused injury

Factors Demonstrating
Failure to Train:
• Not Single Incident""""'-""''·"'""
• State Minimums oaw .... Ma,oaeouney
• Task Analysis
• Widely Accepted Standards of the
Profession
• Obvious Deficiency or High Profile Issue

Failure to Train Claims Review of
• Medical Care
• Dealing with the Mentall y Ill
• Use ofForce/ICD/ARD
-TASERECDs
- Excited Delirium
-Restraint Asphyxia
- Compression Asphyxia

• False Arrest/False Imprisonment

• Burden of training
quality rests with
training agency
• Training by certified
instructors?
• Training instructor
received?
• Was training state-ofthe-art?

• Was com!>Wii~i
checked?
• Was testing reviewed?
• Remediation
provided?
• Training job related?
• Training documented?
• Training safe?
• Risks acknowledged?

Abston v. City ofMerced
Denial ofMSJ by USDC,

05124111

Traffic stop of spcedcr/EDP resists/assaults
Use of Baton, foot pursuit, 2nd LEO, OC, 3"' LEO,
foot
pursuit, TASER, 3 LEOs wrestled, TASER, 4"' LEO, CDCR and
Panunedics together finally subdue
TASER=probe mode to back 4x
Abston kicked LEO I = Tom rotator cuff which required surgery
Expert Witness c.iiied into question LEO training with respect to:
- TASER ECD use;
- Excited Delirium;
- Use of force on suspects who are mentally impaired or under
the influence;
- Restraint asphyxia;

/

NPS011031

Abston v. City ofMerced
Claims included §1983, Assault/Battezy, Wrongful
Hiring, Retention, Training,
· · ·

Negligent

"Plaintiffs' inadequate training claim is
provided any records, documentation, or
of Merced's training and policies."

"Mr. Clark's expert report and Officer Defendants' deposition
testimony, however, raise questions whether the identified
deficiencies in the City of Merced's training with respect to
Taser use, excited delirinm, and use of force on suspects wbo
are mentaUy impaired or under the influence also included
restraint asphyxia. Drawing all inferences in Plaintiffs' favor,
this evidence is sufficient to withstand a motion for summary
judgment on failure to train. Defendants' motion for summary
judgment as to the Second and Third Causes of Action on
Plaintiffs' failure to train claim is DENIED."

Abston v. City
Claims included §1983, Assault/Battery,
Hiring, Retention, Training,
"Plaintiffs' inadequate training claim is
provided any records, documentation, or
of Merced's training and policies."

• "Mr. Clark's expert report and Officer Defendants' deposition
testimony, however, raise questions whether the identified
deficiencies in the City of Merced's training with respect to
Taser use, excited delirium, and use of force on suspects wbo
are mentaUy impaired or under the inflnence also included
restraint asphyxia.
So MSJ DENIED.

Who is Focus of .
RECOGNIZING HIGH RISK
Officers received Q1 on all TASEJ:t-n•tate<lc:llllllhsi
immunity was denied as to general excessive
Defendants filed a timely interlocutory appeal on Ql
immunity issue.

• High Profile?
- High Profile Personality
- Government Official

Appeal is pending before the Ninth Circuit; has been fully
briefed (as of 1-4-12) and is awaiting a decision -which given
the Ninth Circuies backlog might not be for 6 months to 2
years.

-Celebrity

-Video or Audio Recording

- Media Inquiry

The settlement conference set for 7-8-11 was taken off
calendar in light of the pending appeal on Ql.

RECOGNIZE HIGH RISK
EMOTIONAL
• In-Custody Death or Si~mifiCarifl[mt
• Attorneys Involved in Personnel
Complaints
• Civil Rights Plaintiff's Attorney Handling
Criminal Defense
• Use of Force Involving:
-Multiple ECD deployments (Heston)
- Canine deployment
- Pursuit with injuries or use of force

• Civil Rights Demonstrations
• Allegations of Discrimination:
-Racial
- Sexual Preference
-ADA

• Children or Animals
• Mentally Ill or Homeless Persons

• Sexual Misconduct Allegations

NPS011032

Excited Delirium:

Western Journal ofEmergency Medicine

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lCD - Where the Courts are

Compressional

Known Risk
489 Pound Man =
"A reasonably trained police officer wouJddcn.ow·'.tl
compressing the lungs of a morbidly obese person can lcill
the person"
So the deputies had to use care in removing him from the
courtroom, unless there was some compelling need for haste.
But there was not. Court was over for the day. From the
effort of the first 2 deputies to seize Richman to his death,
only 7 minutes elapsed.
There was no reason to endanger hi.s life in order to remove

him with such haste. A reasonable jury could fmd that the
deputies used excessive force.

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411212011-$2 Million Jury Verdict:
City of San

foriCDof
Federal jury in Los Angeles awarded
family of a mentaUy ill man who died in
while in custody of San Bernardino police.
Claimed son died due to excessive force by officen and
failure to tend to medical needs.
Report of a man who appeared to be exposing himselt
Jackson suffered from paranoid schizophrenia and was
under the inftuence of methamphetamine and
marijuana and reportedly asked officen if they could
"see the dragons."

An autopsy determined cause of death =Excited Delirium
in the presence of law enforcement restraint
Contributing causes were obesity and an enlarged heart

• Allegedly detained for no reason
"tackled (Jackson), who was obviously ex,per;e.il1ciii1g
psychiatric emergency"
Two officers tried to grab by arms when he reportedly
began swinging at them, but the officen said they had
difficulty because Jackson was 6' and 2SO pounds.
Jackson bit an officer and kicked, head-butted and
struggled with police while being taken into custody.
Third officer used T ASE R 3x and Jackson did not fall
to the ground (DA's Report?)
But the Officer testified that Jackson was already on
the ground when he was shot with TASER 2x

NPS011033

Plaintiffs Counsel
" ••• did not
where he could
their training and policies,"
"The officers made the incredible daim for the first
time at trial that they didn't perform CPR because they
thought (Jackson) might be on PCP and it could
intoxicate them through skin contact."
• Officers held Jackson on the ground to wait for an
ambulance because they couldn't get him into a patrol
c:ar. Even with his hands and ankles bound, the man
reportedly continued to struggle.
Two officers used their hands and kn.ees to pin down
his arms and shoulders, and two held his legs and
another applied weight to his buttocks with his hands.

TASER: Weapon of .

• "It is our sincere hope that this verdict
induce the department to properly train its officers
on how to avoid more unnecessary restraint deaths
from occurring."
• "The trial also exposed the department's wholly
inadequate handling of missing persons reports
like i:hc one made by Sheryl Nash the day before
the incident and its lack of state-mandated training
on· proper methods of dealing with persons
suffering from a mental illness."

Considerations re Use of Force:
Force Must be
Multiple/Long Duration ECD Appuc:an'
Document Control/Cuff Under Power Efforts
and Use 3-Point Stun
Force Decisions & Available alternatives
Verbal Commands/Warnings Given and
Opportunity to Comply
Potential Foreseeable Injury to Subject
Prior knowledge of Subject's Health/Mental
Condition etc.

Recent Court
Decisions

Risk
Management
Concerns

Prefe"ed Target Zone Front

Prefe"ed Target Zone Rear

(when possible)

(when possible)

Lower torso (blue zone)
• More effective
-Split hemisphere
-Larger Muscles
• Reduces risk of hitting sensitive body
areas- refer to TASER warnings
• Increases dart-to-heart safety margin
distance
• Do not intentionally target genitals

• Below neck (blue zone)
-Large muscles
-Avoid head

s

NPS011034

TASER Deployment

TASER Deployment
3-Point Contact
- A 3-point Drive stun OCCUJS when the conta:t 1
the T ASER cartridge are used in corjunction v.ilh 2 points of
contact from the dart.
- This may be reqLired ~the distance between be darts from the
cartridge are too close together noallowing for neurCHnuscular
inC<lpacilation (NMI) or a closed electronic circu~ and flilfunction
of the TASER. This wil have sirrilar effecls a both darts making
contact at the distance betweenthe darts and point of cartridge
contact.
- The drive stuncontad point should be at leaat4 inches SWO!f from
the contact point ofthe dans. The greater thedistance betwe<n
the darts arid the drive stun point, the greaterthe effect on the
suspect. The 3-point stun wil cease its electiveness if the
TASER is not in conlad with the suspect

(1) Only one dart from
the cartridge hits
suspect (3 Pt Stun)
(2) Both darts hit the
suspect close together
not allowing for total
EMD (4 Pt Stun)
(3) Additional control is
needed when
handcuffing
assaultive/high risk

Training for Success:

• You can go hands on with the subject
during the 5-second cycle without feeling
the effects of the NMI
-Electricity essentially follows the path of least
resistance
- Do not place hands on or between probes

Controlling/Cuffing

Controlling/Cuffing

• Move in and control the subject while the
TASER ECD is cycling and the subject is
incapacitated
• EDPs, focused, intoxicated, excited
delirium individuals, etc may not comply
with verbal commands

Bryan v. McPherson
608 F.3d614

• Use each TASER ECD cycle as a "window of
opportunity" to attempt to establish control or
cuff while the subject is affected by the
TASERECD cycle
• The need for multiple cycles may be avoided
by controlling/cuffing under power if contact
officers are available

Bryan is driving while
wearing nothing but
boxer shorts
Stopped for second
ticket of the day and
exits car while agitated

-

--_ c=:!

"Yelling gibberish aad
hitting his thigbs"

NPS011035

Bryan v. McPherson- The

"TASERS LIKE THE
CONSTITUTE AN
"INTERMEDIATE OR
MEDIUM, 1HOUGH NOT
INSIGNIFICANT, QUANTUM
OF FORCE."

Bryan v. McPherson

Bryan v. McPherson Nature and Quality of ...... ...~.~'~"
• Recognize important role ECDs play
• Ability to defuse situation from a distance can
obviate need for more severe, or even deadly,
force and thus protect officers, by standers and
suspects alike.
• Held ECDs =Intermediate, significant level of
force that must be justified by "a strong
government interest that compels the
employment of such force."

Bryan v. McPherson

use

• Immediate threat to safety of officers/others
• Actively resisting (vs. passive)
• Circumstances tense, uncertain, rapidly evolving
("pad' of events) "Split-second judgments"

• Severity of the crime at issue
• Attempting to evade seizure by flight

Bryan v. McPherson
608 F.Jd614
Although we have refused tJJ create two
force analysis, one/or the mentally ill and
crimillllls, we have found that even "when
disturbed illdividual is 'acting out' and illvitillg officers to use
deadly force to subdue him, the governmelllal illterest ill usillg
such force is diminished by the fact that the officers are
confronted . .. wilh a menially Ul illdividuaL "
The same reasonillg opplies to illtermediate levels offorce.
A menllllly ill individual is in need of a doctJJr, not a jail cell,
and ill tire usual case -where such an individual is neither a
threal to lrimselfnor tJJ anyone else-the government's interest
in deploying force tJJ del/lin him is not as substtmtial as its
interest in deploying that force tJJ opprehend a
dllngerous crimillal

Officer MacPherson now argUes llllli
~~
justified because he believed Bryan may
metl/lllly iJ1 and thus subject tJJ detelltio11.
To the contrary: if()jficer MacPherson beUeved Bryan
was mmllllly disturbed Ire should ha~~e made greater
effort tJJ take control of the situation through less
intrusille means.
As we hiJIIfl held, "[tjheproblemsposed by, and thus the
tactics tJJ be employed agllillsl, an unarmed, emotionally
distrauglrt illdividual who is creating a disturbaiiCe or
resisting arrest are ordinarily different from those
involved ill low enforcemelll efforts tJJ subdue an armed
and dllngerous criminal who has recently committed a
serious offense. • Deorle, 272 F.Jd at 1282-113.

Bryan v. McPherson
608 F.Jd614
Moreover, the purpose of detaining a ma11al1,)1~
individual is not tJJ punish him, but tJJ help h~~ ~
government has an important interest in provitlbtg' ,
assistance tJJ a person in need ofpsychiatril: care; thus, the
use offorce that may be justified by that illterest necessarily
differs both ill degree and in kind from the use offorce that
would be justified against a person who lras committed a
crime or wlro poses a threat to the community.
Thus, whether O!JU:er MacPherson believed that Bryan had
committed a variety ofnonviolelll misdemeanors or that
Bryan was melllally iU, this Graham factor does not support
the deployment of an illtermediate level offorce.

NPS011036

Bryan v.
Additional Factors To
• Failure to Warn Bryan that he
with X26 if he did not comply
• Required to consider what other tactics if any
were available to effect the arrest. (LIM)

Headwaters and Chew
- Additional officers enroutc

• Not dispositive= Factor significantly into
Graham analysis

Buckley v. Haddock
Officers are supposed to know ifforee

..

• Sobbing speeder failed to sign speeding
• Compliance force = driver would not walk
District Court (unpublished decision) • Force not objectively reasonable, No officer would
believe it was reasonable =No Qualified Immunizy
Circuit Court (Higher Court mpublished decision)• Chief Judge- Objectively Reasonable plus Ql
• Appellate Judge- 2 uses OR, Jrd use not OR, QI
US Supreme Court Cert. denied on 05/18/09

Young v. County of Los Angeles
9th
1
"TEXTBOOK VIOLATION OF 4TH
USE OF SIGNIFICANT FORCE WITHOUT WARN]NG
AGAINST AN INDIVIDUAL WHO COMMITTED ONLY
MINOR MISDEMEANOR;
• POSEDNOTHREAT;
NOT SEEKING TO FLEE;
• NO USE OF AVAILABLE LESS INTRUSIVE ALTERNATIVES

Young v. County of Los AngelesMSJ
• On appeal did not argue that Young
physical threat to him prior to the use of OC nor
that he feared such a threat.
• ... struck Young with the baton because he
'"believed that Young was trying to gain a position
of advantage over him, from which he could then
launch an assault," and that he" believed that
Young was about to throw the broccoli at him in
order to cause a distraction before assaulting him."

Young v. County ofLos Angeles
9th
1
OC AND BATON STRIKES FOR
AND FOR REFUSAL TO RETURN TO
DRIVER WENT AND SAT ON CURB EATING IDS
BROCCOLI.
WITHOUT WARNING OF INTENT TO OC- OFFICER
SPRAYED DRIVER FROM THE BACK WITH OC THEN
STRUCK WITH BATON AS DRIVER WAS BACKING
AWAY.
DRIVER'S REFUSAL TO GET BACK IN TRUCK WAS A
VIOLATION OF LAW. BLANKENHORN v. CITY OF
ORANGE
DRIVER NOT AN IMMEDIATE THREAT OF HARM OR
A FLIGHT RISK.

Young v. County ofLos Angeles
Recorded Media
• The officer in this matter re«::onaea
incident report that driver had responded
to his orders with the objection, "F*** you,
I don't want to, I'm eating my vegetables."
• The audio transcript records no such
statement by the driver.

NPS011037

Young v. County ofLos Angeles-

oc

• Put OC at the same level or 'fUlauu=u•
the TASER ECD in probe mode - an
"intermediate" level of force.
• "However, because we conclude that the use of
intermediate force is unreasonable when an officer
has detained a suspect for minor infractions and
the suspect clearly poses no threat to the officer ~r
the public safety, we reverse as to Young's
excessive force and negligence claims."

Young v. County of Los Angeles-

• OC= intense pain; burning sensation;
temporary paralysis oflarynx;
• Dangerous weapon under federal U.S. Sentencing
Guidelines = extreme pain; capable of causing
protracted impairment of a function of a bodily
organ; lifelong health problems ie. asthma
• Point to retired LASD Lt. as expert and POST =
very serious and debilitating consequences; only
use as defensive weapon;

Young v. County of Los AngelesGraham Factors .
• Immediate Threat to Officer/Public
• Severity of Crime at Issue (misdemeanor+nonviolent and no threat)
Actively Resisting or Attempting to Evade Arrest
by Flight
- Court Notes Officer's Provocative Conduct (here
unexpected OC while eating broccoli = caused response
of moving and circling) or baton blows while on the
ground

• Less Intrusive Measures
• Warning prior to Use ofF orce

Young v. County ofLos Angeles
ECDs, OC, Batons =
• "Both pepper spray and baton blows are forms of
force capable of inflicting significant pain and
causing serious injury.
• As such, both are regarded as "intermediate force"
that, while less severe than deadly force,
nonetheless present a significant intrusion upon an
individual's liberty interests.

Young v. County ofLos AngelesBaton
• Batons significant use of force capable causing
pain and bodily injury= intermediate force
• California training re batons = deadly weapon that
causes deep bruising; blood clots =strokes; only
as response to aggressive or combative acts
• LASD- head strikes with baton= Deadly Force

Mattos v. Agarano
En Bane gth Circuit Decision
(WA) Brooks v. Seattle
DOl 11/23/04
Drive-Stun
7 months pregnant
Traffic Slop-speeding 32
mph i1 20mph zone
Refusal to Sign Ticket
(repeatady)
3 LEOs-2 PO, 1 Sgt
Force: arm lock, spark teS
+27 sees - drive-stun to
thigh; +36 sacs- drive-stun
to arm; +6 sacs- drivEHtun
to neck; taken to ground +
HC
Resistance= locked up
muscles and clutched
steering wheEl

{HI) Mattos v. Ag,irano
DOl 08123106
Probe depbyment
Female victim of Domestic
Dispute
2 LEOs vs. H+Wife
Resistance? Extended her

arm to stop breasls being

smashed agailst LEO's
body;
ECD w/o warring to Mrs.
Mrs. fell hard
Charges dropped

NPS011038

Mattos v. Agarano
Totality of the
Brooks bears some responsibility for the escalation
of the incident..• however, two specific factors in
this case that we find overwhelmingly salient.
1. Brooks told officers she was pregnant -less than 60
days from due date;
Officers even discussed where they should apply ECD

2. The LEO drive-stunned Brooks 3 times over less
than 1 minute.

Mattos v. Agarano
Drive-Stun re Non-Threatening
• Before each activation of ECD in drive-stun
gain compliance must:
· .. · . · · ·
.
- Give reasonable opportunity to comply with
prior to each ECD drive-stun application;
- Must have reasonable perception that subject is:
-capable of camp liance;
-"actively resisting.•
- Give a warning of the imminent application afforce;.
- Allow person time:
• "to recover from the extreme pain • experienced;
• a reasonable opportunity to "gather" themself;
• reasonable opportunity to "consider [their) refusal to
comply" with commands before each ECD drive-stun
application;

Glenn v. Washington County
On 9/15/06 18-yrold Lukus Glenn was ·

distructive and violent and when he became suicidal threatening
to cut his throat with a pocketknife. Parents called 9-1-1.
Responding personnel reported to staging area re rifles in home;
Off-duty deputy responded to residence and began shouting
•!!@ gunpoint; 2nd deputy arrived and also • !!@gunpoint;
Witnesses described deputy 1&2 as very unprofessional;
Witnesses were ordered to change locations (some behind
deputies others into house);
Advised Back-up enroute and Sgt. Reminded deputies re tactical
breathing and that ECD would be possible alternative;

Mattos v. Agarano
Use ofECDin
• Does not prohibit use ohn ECD in d
gain compliance from individual "actively
• On an "actively resisting" arrestee solely to gain colmplllan,ce
LEOs commands (ie. person is not r&ISOnobly perceiwd to be an
immediate threat or a flight risk):

- Each and every application of a force option by a LEO must be
legally justified.
- Must give the person reasonable opportunity to comply with
the LEO's directives prior to each ECD drive-stun application
• Note: Court mentions "record is not sufficient for us to dete rnnine
what level afforce is used when taser is deployed in drive-stun
mode."

Mattos v. Agarano
Drive-Stun re Non-Threatening Active

• With regard to multiple deployments the·
of time between each ECD drive-stun application
(according to this case) must be:
- more than 36 seconds, to give the person reasonable
time to recover from the extreme pain, "gather"
themself, and to consider refusal to comply;

• LEO should include in report that before each
ECD drive-stun used to attempt to gain
compliance - LEO followed these guidelines.

Glenn v. Washington County
Excessive Force
I.
• 3rd deputy arrived with ECD and
• Deputy 2 ordered deputy 3 to use beanbags;
• 6 beanbag rounds deployed ("BEANBAG,
BEANBAG") and Lukus moved away.
• Beanbags = provocative conduct;
• Lukus moved towards house where deputies
had told family to go
• 11 shots fired by deputies 1 & 2

NPS011039

Force Analysis by 9th Circuit
I) Severity of Intrusion
- Beanbag rounds: Lead shot in a cloth sack;
- Can cause SBI/Death IF .... (Dearie = less than
• 2) Government Interest - Evaluated by:
- Immediate threat; {suicide?)
- Severity of crime; {suicide?)
- Actively resisting arrest or attempting to evade; {complicated)
AND

Totality of Circumstances; Available Alternatives; Proper
Warnings; EDP?
3) Gravity of Intrusion {WCSO policy characterized as LTL to be
used only vs. ominous/active resistance)

Considerations to
ECD Excessive
•Identify objectives for using force ·
•Document reasonable perceptions of
•Consider foreseeable risks of injuries from force
•Consider foreseeable secondary risks of injury
•Use caution when using on ECD on elevated risk population
•Avoid intentionally targeting sensitive areas
•Avoid use solely for pain compliance
•ECD use must= current law and agency policy/training
•Use only to accomplish lawful objectives
•0 usc for punishment
•Use "window of opportunity" to restrain
•Train re when and how to use with other force options

Arrest Related Death Risk Management:

DEVELOPING A PLAN
WHEN DEALING WITH AT-RISK CmtCUIMS:TA
Evaluate innedillcy oftbeneed forbands-oo force, ECD, Teaq Ta:tlcs or

• So:
-

EDP only a real threat to self
Waming not effective
Provocative conduct caused force escalation
Less intrusive alternatives ic Talk, Time,
TASER, Team, ...
- Beanbag rounds inaccurate and unreliable

Arrest Related Death Risk Management:

DEVELOPING A PLAN OF
Address training
needs of LEOs and
Jailers re:
- E.scalatiooJD...
Escalation, Use of
Force;

- DT skills, Team
Tactics, ECD 3-Poiat
StUD, Cuffmg Under
Power;
- Verbal Skills; Report
Writing and Report
Review;

to recognize
Circumstances (ie. History
of Mental IDness/Drug
Usage; Obese; Sweating
Profusely; Extreme
Hyperactivity •• , ) and to
implement plan of action;
Prepare PIOs in ad"ance to
address sud! incidents (i"Mock Press Conferences of
high profile incidents prior
to Frying Pan experience);

Arrest Related Death Risk Management:

DEVELOPING A PLAN
Superviaon foeu •ea p01sible on tae eondition
medial atteation •gaged and radio log eatries made

other force options; ('Baste vs. Pause Buttaa")

Conduct Post-Iocidmt Investigation aecordinz: to established protocols

Stage Emcrgeoq Medical Penomel ill advance of physical actba when

induding medical "'ideoce re ARD/lm (see lCD investigati>n and E•cited
Delirium JI"Otocols);
Documeutationpnpared D conjunction witb review of any audioNdeo
evideoce and EO> data port dowdoads;
Reports re\liewed and approved by supnisor witb ilput from departmmt
SME and legal tolllsel as appropriate;
Prepare PIO to address be particular incident;
Preparation for P'DSecutioo of subject if criminal Garges are •rranted;
Post-Incident debrief and review of policy and tnioiog isoues Omg term
plaooiog);

warraated;
Supervisor on-scene prior to Use of Force;
Formulate a pl.m of action reuse of force optiom and ultimate end game
plan (ie. Avoid tbe"'Ouster of' Coafusioa");

Radio trausmissiou re time of initiaibn of Use of Force and cautive factors
(ie. physically asaultive, combatve, suitidal or detailed desaiptioa);
Radio traumiuion re time of placing subjectJi...custody and Dtus (ie.
"Subject io custody witb paramedics, in H/C, aeated ~prigbt and
breathing") with periodic updates to etry re statw;

NPS011040

DRAFT RECORDED MEDIA REVIEW POLICY
State
It is the policy of the _ _ Police
prepared
official statements and written reports
with a goal of factual accuracy and thoroughness.
The review of existing recorded media relating to an
incident such as video and audio recordings or electronic
data may correct and enhance the reliability of an officer's
recollection of events and more accurately document the
events in the form of reports or statements.
Therefore in preparing written reports and in preparation
for giving statements, officers will review evidence known
to exist to achieve optimal accuracy with regard to the
events and circumstances prior to giving statements and
preparing reports.

Officers should keep in mind when preparing reports and
giving statements that such recorded media, while helpful
in preparing reports and documenting events, is rarely a
complete reproduction of the events. Furthermore, such
recorded media does not typically document important
concerns such as an officer's state of mind during the
events or the context in which the events were occurring.

DRAFT RECORDED MEDIA REVIEW POLICY
• Such review will include when "v'w"u'"· "''w''''
the events including such items as ph<>to~:raphs;
recordings of the actual events and the
and electronic data such as ECD dataport downloads.

Officers will assure that the OrigiiW ·· ·
maintained in a secure manner and is not
manner during the review process.

Example:s:

-

Carc:ams;
TASER cams and Dataport dowlloads;

-

AXON or other en-officer video remrdings~
On-officer voice rea)rdings;
Vidm/Audio remrdings of interviews;

- Radio allllmunications and dispatch entries;
- Telephone reeordings;
- MDT me!5ages;
- Third-party soorces sum as phttographs, vileo or audio reeordings fran
cellular phones, security camems;

DRAFT RECORDED MEDIA REVIEW POLICY
Urgency of Required "Public S:ifety" •"''"mentJ:~~
prior review of recorded media initially;
In circumstances where employees will be int<orview<od
to their actions in a Use ofFeree incident:
- Allow review when practicahle;
- In incidents where employees will be separated prior to
interview the review shall be done individually {with
representative present)
A supervisor may decide to delay review of media in
circumstances that raise extraordinary concerns such as potential
destruction of evidence. In such circumstances a command level
officer will be consulted promptly to discuss any potential
concerns and will make a determination as to the appropriateness
of the media review.

Officers will request assistance from supervisors in
obtaining access to any existing recorded media if the
officer is unfamiliar with the s:ife and secure manner of
retrieval of the particular media. Supervisors will assist the
officer in obtaining access to such items and in maintaining
the integrity of the recorded media evidence. Note that
where specific policy exists with regard to access or
operation of technology or equipment, officers and
supervisors shall follow the specific policy relevant
thereto with regard to such technology or equipment.

DRAFT RECORDED MEDIA REVIEW POLICY
Documentation ofRecorded
When an officer submits a report containing·· ' .. ·· · . ,
documentation of their actions or observations based on
the review of available media, officers will list in their
report all of the media which has been reviewed.
In circumstances where an officer has previously prepared
and submitted a report ahout the events to a supervisor
prior to reviewing media that is determined to exist, the
original report will be maintained and any additional or
varying observations and information will be submitted in
a supplemental report.
During recorded interviews regarding any event, the
interviewer should estahlish what media if any the officer
being interviewed has reviewed.

NPS011041

Version 2.2 April 1, 2011

Arrest-Related Death
Evidence Collection

11.

Highly Perishable Evidence (some items repeated below}
a. Get the AED (Automatic External Defibrillator) or cardiac monitor
downloads (including rhythm strips and technical operational downloads). This is usually erased when the next paramedic shift starts.
This information can eliminate "electrocution" by the TASER CEW
(Conducted Electrical Weapon) 95% of the time. However, it is
erased 80% of the time. Note that there can be 4 defibrillators: (1)
Squad car, (2) Paramedics, (3) Ambulance, and (4) Hospital.
b. Maintain as evidence the CEW wires and probes! Microscopic analy•
sis of the probes and wires will often show that no electrical current
was delivered (as one probe missed) and eliminate the TASER CEW
as a factor.
c. Core (rectal or liver) body temperatures at as close to time of collapse as possible by medical personnel. Not considered important by
EMS or Emergency Department (ED) staff for therapy but important
for Excited Delirium diagnosis.
d. Paramedic pulse oximeter recording lf available.
e. End tidal C02 measurement from paramedics during CPR (cardiopulmonary resuscitation) or after they intubated the subject. Often
not recorded.
f. Antemortem (pre-death) blood sample from ED in proper preservative tube for "quantitative" analysis- not just "qualitative" analysis.
g. If postmortem blood sample- get several blood samples (especially
peripheral samples) and place in proper preservative tube for quanti·
tative analysis- to avoid continuing metabolism within the tube.

12.

Important Requests for ME (Medical Examiner)
a. Hair sample and chronic drug use analysis ($75). At least save a
head hair sample (pencil thick when twisted) and a pubic hair sample.
b. Mash Miami brain test ($400). (1-800-UM-BRAIN and
www .exciteddelirium .org}
c. Due to the importance of the hair and brain test. the LEA (Law Enforcement Agency} should offer to pay for them. The $475 is nothing
compared to the typical $1 million settlement for an ARD (arrestrelated death).
d. Save the r1eart (histologic heart blocks may be very important).
e. It any TASER probes were within 5 em (2 inches) of the hear1, ME
!
should measure the exact distance (in millimeters) from the tip of th]
probe to the outer surface of the heart. Document all probe locations.

-~~-~~~;~~~;-~-~ !~~~~~;f!~i~~~n~~~~~;.g ':-~:~~--~-~~~~~dro~----

NPS011042

~~----~---~-----~~~~~-----

----------------

3. Acute Medical Information.
a. Body Core (rectal or liver) Temperature at time of death and as close
to collapse as possible.
b. Collect 10 ml (milliliters) of blood as soon as possible after ED arrival
tor later quantitative drug testing.
c. Document (ideally photograph) all TASER probe and wound locations. Record if they removed the probes or subject arrived without.
d. Within 24 (preferably less than 12) hours of collapse, brain samples
must be properly collected and frozen. Call 1 800 UM BRAIN (also
www.exclteddelirium.org) for shipping instructions.
e. In suspected cocaine. methamphetamine, PCP, etc. smoking cases,
swabs of mouth and bronchial tree are helpful for chemical analysis.
f. Remind treating physicians to keep documentation objective and
don't write about things thay do not understand. Oooasionelly hospi·
tal records will Include statements about a "TASER" wound even
though there was no TASER CEW used near that specific location.

4. Chronic Medical Information.
a. Obtaining hair and toe-nail samples. Twist strands of longest head
hair available like a lock, about as thick as a pencil lead, hold together to keep strands aligned as you cut as close to skin as possible. Transfer lock to tin foil or paper, fold (to hold together), and secure. Collect similar samples from longest pubic/groin hair.
b. Obtain all available past medical records.
c. Obtain printouts from pharmacies used by suspect for past 2 years.
d. Obtain all crim_lnal justice records.
e. Obtain all rehabilltation and treatment records.

5. Circumstances Regarding Arrest.
a. Distance CEW fired, probe spread, probe location, and duration of
cycles.
b. TASER CEW effects (such as change in behavior).
c. Subject's influence (drugs, alcohol, emotionally disturbed).
d. Any other use of force employed?
e. Was an AED, defibrillator, or cardiac monitor used?
f. Did the AED report a shockable rhythm?
g. Is there a printout (download) from the AEO or cardiac monitor?
h_ How long between the CEW exposure and the subject's collapse?
Specifically detailed chronicle of all witnessed behaviors. actions, inactions. physiological status, etc.
Was tt1e subject walking, fighting. or talking after the exposure?
J. MEs contact info or supporting info from medical attendants and ED
k. Hospital exam information (if conducted)_

6. Interviews.
a. Treat lhe EMTs (Emergency Medical Technicians) and Paramedics
etc at the scene like any other witnesses. Get complete statements
from them about what they observed and what interventions they
made. Very often, they can make medical observations tfla! tt1e
LEOs (Law Enforcement Officers) might not realize are important but

NPS011043

they will have forgotten by the time their depositions are taken two to
three years later. Where did the probes land? Don't assume that
their standard report has enough information - it does not.
b. Try to get eyewitness statements that address the rapidity with which
the subject went from screaming, struggling, and yelling to unconscious, not breathing and pulseless. 1
c. Get statements that Include whether or not the subject could be
heard to be breathing, screaming, yelling, etc throughout their con·
frontation against LEOs efforts to capture, control, and restrain.
Screaming and yelling require that air is moving over the vocal cords
and demonstrates that at least some degree of ventilation had to
take place. How much yelling and screaming?
d. Debrief LEOs and witnesses regarding words and actions manifested by subject. Get details of ~atterns of W91king, talking, gestures, facial expressions, breathing, pulse, etc. Ask interviewees to
replay their memory with attention to DUI {Driving Under the lnfluence)/DRE {Drug Recognition Expert) type details. Sounds, even
grunts, growls, and snarls, are important. Get collaborative reports.
i. Was suspect growling? How?
ii. What words could you make out?
iii. Huffing and puffing?
iv. Sweating?
v. Drooling?
vi. Eye movements?
vii. Balance?
e. If subject is only injured and survives, debrief as soon as possible
about subjective feelings, thoughts and drug effects. They were the
only ones inside their bodies and looking out so ask how they saw
and heard the world. Don't translate anything into your own words
but describe mannerisms and expressions accompanying their descriptions.
f. SOUNDS: Ask all witnesses to describe any unusual sounds they
heard. If they describe sounds like "arcing" or "electrical short" there
was probably a connection break and the suspect was not getting
current delivered at that time. Even "clicking" heard in a noisy situation or from > 10 ft. in a quiet situation, is indicative of a broken connection. Like a car or refrigerator, when the TASER CEW is making
noise. there is usually something wrong. Adverse witnesses love to
go on about the electrical noise, thinking they are hurting the police
when the opposite is true.
1

Remember a respiratory death takes minutes whereas a cmd1ac death takes only a few seconds.
Try to specifically determine the time sequence as clearly and carefully as possible in the early
pnase or t11e investigation. Advise LEOs to collect as much information about the passage from
activ1ty to unconsciousness as possible. The sequence of events ror a sudden cardiac deacn as
opposed to a respiratory death are mnrkeoly different and chronicling exaclly wh<ll happt!ncd. how
fast. when, and whether there was resistance. eKerlion. struggling, or lighting until ·au of a sudden"
:Jr like a 'light switch" things changed can be most •mportant 1n!ormat1on.

NPS011044

7. Evidence Collection.

a. Photos of wounds and CEW probe or drive~stun impacts with ruler.
b. Photos showing distance of probe or drive~stun spread (scale).
c. Keep the original CEW battery In the CEW (DO NOT Remove). This
will keep the integrity of the internal clock.
d. Do not discard probes or wires (treat them as evidence). Do not let
EMS place probes in "sharps" conralner as information can be gath~
ered from the probes and wires as to whether or not they actually
delivered current.
e. Download CEW data within 48 hours of the event and maintain evi·
dentiary copy of download (including time drift)
f. Collect 2-3 AFID (Anti-Felon Identification) tags and note their location; this will be helpful if multiple CEWs or cartridges were deployed.

8. Medical/Autopsy Data and Tissues
a. All treatment records
i. EMS
ii. Emergency department
b. Autopsy report
c. Autopsy microscopic slides (if any were prepared)
d. Autopsy gross tissues (if any were retained)
i. Heart is especially useful

9. If the CEW Did Not Perform as Expected:
a. What was the failure or challenge?

b. What was the subject wearing (especially, multiple layers. thick lay·
ers, loose clothing, etc.)
c. Was the CEW dropped or subject to a high-moisture environment?
d. What were the operating conditions?
e. Did the CEW fire?
f. Did LEOs hear loud arcing- especially across the front of the CEW?
g. Drive-stun or probe deployment?
·
h. When was a last successful download or spark test done?

Copyright 2011 by Mark Kroll, PhD, FACC, FHRS (Mark@kroll.name). Special thanks to
Ron Siegel, PhD (rksiegel@gmail.com} for the material on hair testing and parts a-e of the
interview portion. Special thanks to Jeff Ho. MD for review and improvement suggestions.

NPS011045

Excited Delirium Checklist
Excited deUrium or excited delirium syndrome is only one form of potential sudden death
that law enforcement officers may encounter. Other potential causes of unexpected
arrest-related deaths include, but are not limited to: SUDEP1. 2 (sudden unexpected death
in epilepsy}, sickle cell sudden death, 3 various cardiomyopathies,• drug induced
arrhythmias (including those caused by alcohol 5• 6 and marijuana 7' 10), psychiatric
arrhythmias (whether due to schizophrenia 11 or medications 12 ), and severe coronary
artery disease.

Present?

Criterion

911 Call- Emergency Contact for Assistance
1. Critical call phrases include, "He just freaked out," "just snapped," "flippec

out,• or a person is "running around naked." 13

Law Enforcement
2. Agitation,. screaming, extreme fear response or panic

•\D

3. Violence, assault. or aggression towards others 18' 2 .

4. Suspicion of impending death. Typical comments include, "I'm dying,"

"Please save me," or "Don't kill me"22
5. Incoherence or disorganized speech. Grunting or animal sounds~ · ~·

6. Cloth in~ removal inappropriate for ambient temperature or complete
nudlty. 1 • 2~'26

7. Disorientation or hallucinations

'<r·:ou

8. Mania, paranoia, anxiety, or avoidance behavior

'18. 3 ,.,.

9. Constant motion or hyperactivity ' 4 · Jo. ,,..
I

. Capture, Co-ntro-l and Restraint of Subject

I -rll__
r
I

j

2

1_
o_.E_x_t_re_m_e_o_r_·s_u_p_,e_r_hu,...m_a_n·...,·s,-t-re_n_g_th__'-.lJ-.,.-,'rl>,--------11. High threshold of or imperviousness to pain 23 26

I
I
;
! - - - - - -j: - 12. Extreme stamina'nr--·-- ... ·------ ---------·

I

I

.
I

~-------~---,3_

Brief

~

i

arrest ' ' ' 3

9u1~t p,erfod before collapse likely

--~

1

---l

.

corres_Po_rd,ng--with respiratory

39

j

NPS011046

Emergency Medical Services Contact and Intervention
14. Presenting rhythm of PEA (p,ulseless electrical activity) or asystole!•··~~--.
Also documented by "No shock advised" with automatic external
defibrillator42

Emergency Department

!

15. High core body temperature. "• '"· ... • ·

..,

16. Acidosis (acidic blood).... ••·••
17. RhabdomyoJysis (if suspect is

resuscitated).·~.•,.

4

"

-·-~~-

Law Enforcement/Forensic Investigator Death Investigation
18. History of chronic stimulant abuse or mental illness'"· ••· "· ·~· ..•-•u.......
History of violence or drug related arrests, mental health ·histories and
treatments, and druq rehabilitation Interventions, etc.
19. Damage to shiny objects such as glass, mirrors and lights!.. Reported
behaviors may include attacking a squad car light bar or charging
oncominq traffic at night. Occasionaflv generalized vandalism.

Pathologist - Medical Examiner Investigation
20. Minor injuries from fighting against restraints (e.g. handcuffs, hobbles).
21. Positive Mash (central nervous system biomarkers) test for dopamine
transporter assay and heat shock protein. 15• 31 • 3~· 53-5 7
22. Positive brain and hair toxicology screen for chronic stimulant abuse.""·""
62
Post-incident drug levels may be low to negative.
Contnbutors: Mark Kroll, PhD; Charles Weth, MD; Deborah Mash, PhD; Steven Karch,
MD; Michael Graham, MD, Jeffrey Ho, MD.

2

NPS011047

•

Notes:
A syndrome is an aggregate of signs and symptoms that define a medical condition. Not
all persons with a certain syndrome have all the same signs and symptoms. Not all cases
of a syndrome result from the same cause. For example, some persons with carpal tunnel
syndrome will have numbness and tingling, while others will have weakness and pain.
Also. some persons with carpal tunnel syndrome will have it because of trauma, while
others will have the syndrome because of pregnancy, diabetes, rheumatoid arthritis or
thyroid disease.
Persons with the excited delirium syndrome will have various combinations of some of the
signs and symptoms listed above. The cause (etiology) of the excited delirium syndrome
in any individual may be due to one or more of a number of conditions. The most common
t;Qn<;litlons are mental illness and illegal stimulant abuse (especially cocaine and
··
methamphetamine). 40
Because the term "excited delirium syndrome" has not been widely used until recent
years, many physicians do not recognize the term even thouBh they may be very familiar
with agitation and deaths due .to drugs and other conditions. 3 It is important to avoid the
distraction of the various terms that have been aoplled to this syndrome. For example,
71
54
what is now referred to as excited delirium 14' 16. 26 • 32 · 33 • 36· 38"' 0· •s-oe, 51 • • 55 • 64 ' or agitated
116
30
117
72
delirium"· ST, '
has also been called: Bell's mania, acute exhaustive mania,
acute
30
30
30
30
delirious mania ,
delirium grave,
typhoma,
acute delirium,
manic-depressive
119
and neuroleptic malignant
exhaustion, 24 excited catatonia, 91 lethal catatonia,
syndrome.'9· 2a.••. 1•,, 1e

J

NPS011048

Statistical Confidence:
There must be at least 5 positive criteria to diagnose excite delirium syndrome.
For 12 or more positive criteria the confidence level is at least 99.9%. For less
than 12 positive criteria the confidence depends on the number of criteria for
which information is available.
For example, the brain and hair tests are, unfortunately. typically not done.
Often the blood tests for rhabdomyolysis is not done. In this case there will
on!y be information on 19 criteria. If 8 of these 19 criteria were positive then the
confidence in the diagnosis would be 93%.

Number of Positive Criteria

Number of
Criteria With
Information
10
11
12
13
14
15
16
17
18
19
20
21
22

5

6

7

8

54%
52%
61%
50%
60%
59%
59%
58%
58%
57%
57%
57%
57°/o

82%
81%
79%
78%
78%
77%
76%
76%
75%
75%
74°/o
74%
74%

93%
91%
90%
89%
89%
88%
87%
87%
86%
86%
86%
85%
85%

98%
97%
96%
95%
95%
94%
94%
93%
93%
93%
92°/o
92%
92%

9

10

11

99% 99.9%
99% 99.8% 99.9%
99% 99.6% 99.9%
98% 99.4% 99.8%
98% 99.2% 99.8%
99% 99.7%
97%
99% 99.6%
97%
99% 99.5%
97%
99%
98%
97%
99%
98%
96%
99%
98%
96%
99%
98°/o
96%
99%
94%
96%

NPS011049

MANNINc&KAss,
ELLROD, RAMIREZ, .TRESTER
A rtURNEYS ,\T

LLP

LAW

DRAfT POLleY I ANGUAGE RE MEOlA REVJEW
Iris rhc poliL~Y of rhe ---- Police Department rhar offici:1l sratemt•nrs >lnd wrirtt~n repurB should
bl! prepa1·eJ with a goal of f.1cntal accuracy and rhorcKIJ;:hm:s~- Thc review of existing media relating wan
inciJcnr such ;1s video and ;tudio rcwrdings or elcctronk da!i\ may correcr and enhance rhc rdiabiliry tlf
an nfficer';; recollccrion of events and more ac.:tlr:ttdy document the evenrs in rhc fnrm nf reports and
statement$, Therefor.: in preparing wrlrwn report~ and in preparariCln for giving Haremenrs, officers will
r~viL'\V evidence known co exisc w achieve oprimal accuracy with regard to the cvcms and .:ircumsmnrcs
priM rn giving sraremcnts and preparin~; l'<"porrs.
Officers sh,,uJd keep I mind when preparing rcpom and giving statcmenrs thar such media, while
hdpful in prcparing reptlrts and documenting evcnrs, is rardy a complete rc:pnxluctk>n of the L"Vcnrs.
Furthermore, such mcdill Jocs not typicnlly dt>cumcnr important concerns such as an officer's stare of
mind duri11g the events ur rhe conrext in which the <-'vents were occurring.

Such n:vi~w will include when available, audio or vi~Lml media of the cvc:ms including su~h items
as photClJ,'l'aphs, ,~r.Jeo c1r audio reconlin~ of the actual evenrs and the uffic..:r's own ob~crv;nions, and
dcctronic dam such as ECD dataport downlnads. Officers will liSSUrl:-' rhnr the original media is main·
mined in a securernanner nnd is not altcrcu in any manner during the review proce..o;s. Officers will request
assimmcc (r.om supervisors in obtaining access to any cxi:;ring media if rhe officer is unfamiliar wirh rhc
safe and secure mann.:r (lf retrieval()( the particular mctlill. Supervisors will assist the officer in obraining
;Jcccss ro such items ;md in m:1inmining d1c inrcgriry oi rhc meJin evidtncc. Note that where specific
policy exists wirh rc~:ard ro a.:c~s~ m opcmtitm of rechnolc>;:y or cquipmenr, oft'icers and superviHlrs shall
follow rhl· spL•cifi,, polk}' rd.:v:mr thcrcru wirh rcf,!arJ to such wchnology or cquipmL·nr.
A supervisor may decide to dcby review oi m..:c!ia in circumsran.:c'5 rhar raise cXrTtl(lrdinary
c:<•ncerns such as potential dcsrructil>n oi evidence•. In sw::h dri'lllnsrann:s ~ wmm:ll)d lew! otficer will
consulr.:d pwrnplly en <liscuss ;my pnr,•nrial con.:crns anclll'illmah: :l dcrcrmin:1rion as w rhc ;lppmpriilrc·
nt:ss ni thl' mnlia n:1•ic:w.
\.X,'ht.:·n ~H't ,,ffi~'-·r suh,nie~ a r~..~porr cunt;dnin)! d~h.:llm~.:nration t\1' rhcir :tCtlt'HlS or dh~<~n;:uiun_..;
h:"t:d nn rh,~ I'L"'i<:w ,,{ :1\';lil;~hk ntcdia, nfticns will li~r in rhL'ir rq1t>rt ,dl "( dw 1m:..lia wh11:h h,l.< J,,•t:n
l'c'\'Jc>lwJ. In cir(Litnst;1!1c'l!S wha.c an otiicl'T h;J.\ prcv: .. o:<ly prc:pan:d and >llhmitr.<::d a r~p(lrr abour rhc·
~·\'l'rHs ru a -:u!"~C.'n,.is~tr priur lt.' r~.·vl~~\\'in~ 111~'-li:t that i .. : J~·r.t..·n,,inc.•J rl\ ~xi~r~ th . .~ l\r·ig:n:d r,:pnrc \\.'IU hf..' n1.Hn ..
t.till<'t! :tnd ,lfl\' ;lddiEil•nnl<>r var,,in~ ohscn·:tri,m~ ,,n.f inf.,r:narl<lll will bL' q:[,min,·d 111 :1 >uppl.cm~nr:d
:-c'!'<>rL 1111rin:,: r,•.:prd..!d imervi,~ws roe).!;1r,lin!! ,n1\' c•vcnr. rhc illtl'r\'i<'I\'L'T ,h,HJ!.! c>r:~Hi,;h wh.H ml'db .r-an\'
1hv llff~cc.::- h~·in;.: !!Ht..~n·i,·wl'\..1 has n~vt~.~w\:d.

NPS011050