What is Excessive Force in Arizona?

Police practices have come under national scrutiny.  What is excessive force by law enforcement agencies and what is not?  While the nation is still coming to terms with the shooting by a police officer in Ferguson, Missouri, this is not an isolated problem. Phoenix and Arizona have faced their own questions about what amounts to excessive force during a mental health call and when ASU Assistant Professor Ersula Ore P.h.d. was videoed being slammed into a police car resulting from questioning about jaywalking.

Judging the use of force is a difficult undertaking, especially from the outside.  It is important judgment to make sure there are not abuses in the process.  Because of the power that police have, cases of alleged excessive force make the news.  But rarely does the discussion involve what excessive force is legally, especially from the police’s standpoint.

Police manuals (also referred to as: directives, policies, orders, etc) can be considered an internal standards of care.  Using them can help determine if police officers act in accordance with the law.  See Miranda v. Arizona, 384 U.S. 436, 448-51 (1966) (where the court expressly used and quoted police manuals to determine the standard practice for custodial interrogations at that time).

This blog post intends to examine what the guidelines are for Arizona law enforcement agencies use of force.  Through examining the Arizona Revised Statutes and police department procedures and manuals for the three largest cities in Arizona (Phoenix, Mesa and Tucson), I hope to piece together a general standard for when police are allowed to use force.

Use of Force
There are different types of force to be used in different situations.  Basically, there are two types force that can be used of non-deadly and deadly force.  Those types of force can be used appropriate or inappropriately.  When the use of force is inappropriate is is almost always excessive force, or more force than is required for the particular situation.

Police have a very, very difficult job and no two situations are the same. That is why there are few hard and fast rules when it comes to the use of force.  Instead, usually a totality of the circumstances test is used.  That is just a fancy way of saying that all the facts will be looked at to determine if force is appropriate or not.

When applying the concept of a force model, the totality of the circumstances involved in the incident must be considered. Officers may initiate the use of force at any level of the force model that is appropriate under the circumstances. Circumstances that may influence the level of force used by the officer may include, but are not limited to:
The nature of the offense;
The behavior and actions of the subject, such as resistive actions, aggressive acts, etc.;
Physical size and conditioning of the subject and the officer;
The feasibility and availability of alternative;
The availability of additional officer.

— Tucson Police General Orders, 2020 Use of Force Model, at *1-2.

The Tucson General Orders lists five factors that can be used to consider the use of force is appropriate.  However, these are not the only factors that can or should be considered.  The factors depend completely on the circumstances.  Are members of the public put in jeopardy?  What is the weapon a rock or a loaded gun?  Is there clear visibility?

The factors to be used are limitless, just like the situations in which can arise.

The application of an unreasonable amount of force in a given incident based on the totality of the circumstances.

— Phoenix Police Department, Operation Orders 1.5, at *1 (June 2013).

 [T]he reasonableness of a particular use of force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight. Force used to gain control of a situation will be used with restraint and in proportion to the resistance offered.

— Mesa Police Department Policy Manual, Use of Force 2.1.1, at *1.

I think the Mesa Police Department Policy Manual makes an interesting point.  Current information about the situation cannot be used to justify or condemn a previous action. The totality of the circumstances test is applied with the knowledge known at that time force was used.

Non-Deadly Force

Non-deadly physical force includes tactics and intermediate weaponry that, when properly
applied, have a minimal risk of causing serious injury or death.  Non-deadly physical force and intermediate weapons may be used in instances where an officer
reasonably believes that it is immediately necessary to take action, such as:
Protecting the officer or another person;
Preserving the peace;
Preventing the commission of an offense;
Making a lawful arrest;
Preventing a person from harming themselves

— Tucson Police General Orders, 2030 Non-Deadly Physical Force, at *5.

Phoenix

It appears the key to this definition is where there is minimal or no risk of causing death. Accord Phoenix Police Department, Operation Orders 1.5, at *1 (June 2013).

Mesa

Mesa Police Department does not expressly define non-deadly force — seems like an oversight, but since any other force than what causes death is non-deadly, it seems like a reasonable person can figure it out.

Deadly Force

The Arizona State Legislature gets into the game here and defines what deadly force is when used by law enforcement.

C. The use of deadly force by a peace officer against another is justified pursuant to section 13-409 only when the peace officer reasonably believes that it is necessary:
1. To defend himself or a third person from what the peace officer reasonably believes to be the use or imminent use of deadly physical force.
2. To effect an arrest or prevent the escape from custody of a person whom the peace officer reasonably believes:
(a) Has committed, attempted to commit, is committing or is attempting to commit a felony involving the use or a threatened use of a deadly weapon.
(b) Is attempting to escape by use of a deadly weapon.
(c) Through past or present conduct of the person which is known by the peace officer that the person is likely to endanger human life or inflict serious bodily injury to another unless apprehended without delay.
(d) Is necessary to lawfully suppress a riot if the person or another person participating in the riot is armed with a deadly weapon.

— Ariz. Rev. Stat. § 13-410 (use of deadly force).

State law should probably be viewed as the minimum standards.  Law enforcement agencies are allowed to be more cautious than what Arizona statutes, but not less.

Generally the Arizona law states officer must fear for her life, or the life of another.   Using deadly force on an individual who is just holding the knife and is not in the act of using it is excessive force.  It is interesting to note that the weapon is described repeated as a ‘deadly’ weapon.  The weapon must pose an imminent harm to human life.

Tucson

Deadly force may only be used when an officer reasonably perceives an imminent threat of
serious physical injury or death to the officer or
another person. When feasible, officers will
attempt to utilize lesser means of force prior to u
sing deadly force.

Except when faced with deadly force, officers are not authorized to independently use deadly force during a barricaded subject or hostage situation to terminate the incident. The Incident Commander of the rank of Lieutenant or above must authorize any advanced or planned use of deadly force during an ongoing barricaded/hostage situation. The commander authorizing use of deadly force must issue clear and specific instructions. Any Officer receiving such authorization shall refrain from the use of deadly force if, in the opinion of the officer receiving the authorization, the use of deadly force is no longer justified and /or practical.
The discharge of a firearm, other than in a training capacity, in the tactical situations …or when testing the firearm, will be considered to be use of deadly force. The use of a firearm in a situation that does not warrant a deadly force response will be
presumed to be a deviation from policy.

— Tucson Police General Orders, 2040 Deadly Force, at *5.

The Tucson Police General Orders go above and beyond the Arizona Revised Statutes.

First, if the use of deadly force can be anticipated then it must be given by a supervisor.  Second, the discharge of a firearm unless in an approved situation is considered deadly force.

These are some substantial protections added in addition to what the state law provides.

Phoenix

 Officers may use deadly force under the following circumstances:
When such force is reasonable to protect themselves or a third person from another’s use, or threatened use, of deadly force.
To prevent the escape of a subject whom the employees has probable cause to believe has committed an offense involving the infliction or threat of serious physical injury or death, and is likely to endanger human life or cause serious injury to another unless apprehended without delay.
In situations where the officer must overcome an attack the officer reasonably believes would produce serious physical injury or death to the officer or another person.
When the use of techniques taught by the Department’s proficiency skills instructors is not practical under the circumstances, the officer may resort to any reasonable method to overcome the attack.
When the circumstances justifying the use of deadly force no longer exist, deadly force will immediately be discontinued.
Employees still may use reasonable force to maintain control and to protect themselves from danger.
Deadly force is utilized as a last resort when other measures are not practical under the existing circumstances.
The intentional use of a police vehicle against a subject on foot will be considered a use of deadly force.

— Phoenix Police Department, Operation Orders 1.5, at *13 (June 2013).

An interesting point in the Phoenix Police Department Operation Orders is when the use of force stops.  If the threat is deescalated or ceases to exist then the use of force is no longer justifiable.   This may seem like common sense, but I think it is really important to write down, even if it is just a reminder.  Arizona state law does not mention this, so I am glad the Phoenix Police Department Operation Orders do.

Mesa

Mesa Police Department provides a definition of deadly force and cites to the Arizona Revised Statutes.  Mesa Police Department Policy Manual, Use of Force 2.1.1, at *2.

Either I did not receive, or Mesa does not have formal rules about deadly force.  It appears the more likely answer is I did not receive the procedures for when deadly force is authorized.

The next section in the copy of the Mesa Police Department Policy is the Officer-Involved Scene Responsibilities.  Mesa Police Department Policy Manual, Use of Force 2.1.20, at *1-7.

Excessive Force

There are situations where police are completely justified in using force, even deadly force (see below for deadly force discussion).  Often it is not the use of force that is disputed, it is whether the use of force was reasonable under the circumstances.  It is when force becomes excessive is when there is a problem.

Phoenix

The application of an unreasonable amount of force in a given incident based on the totality of the circumstances.

— Phoenix Police Department, Operation Orders 1.5, at *1 (June 2013).

Phoenix police further indicate when types of force is appropriate.  For example when a suspect is handcuffed officers “will not use strikes, impact weapons, chemical weapons, ECDs [Electronic Control Devices], carotid control techniques, or deadly force unless such force is necessary to prevent imminent serious bodily injury or death, or unless such force is reasonable based on the totality of circumstances.” Phoenix Police Department, Operation Orders 1.5, at *2 (June 2013).  The Phoenix Police Department seems to do a very good job describing the different types of force that can be used and when it is should and should not be used.  The documentation is so good, it is too long to list here.  If you are interested in specific types of forces please see the Phoenix Police Department, Operation Orders.

What is interesting is Phoenix also implemented a self-reporting policy on excessive force.  “All sworn employees will intervene, if a reasonable opportunity exists, when they know or should know another employee is using unreasonable force. All sworn employees will immediately report excessive force verbally to a supervisor.”  Phoenix Police Department, Operation Orders 1.5, at *2 (June 2013).  Creating an affirmative duty for officers to report excessive force is great!  Props to the Phoenix Police Department for self-monitoring!!!

Tucson

The Tucson Police General Orders do not provide an express definition for excessive force.  Since they provided a “Use of Force Model” (see above) that shows the factors that go into the decision to use force, I would imagine the Use of Force Model would be used to determine if force was excessive or not.  Tucson Police General Orders, 2020 Use of Force Model, at *1-2.

The Tucson Police General Orders describe a hierarchy of types of force and try to explain when a type of force is appropriate or not.  “Firearms may be used for tactical purposes when other reasonable alternatives are not available.” Tucson Police General Orders, 2041 Use of Firearms, at *6.

“Chemical agents and OC sprays are non-lethal weapons utilized in a variety of tactical situations ranging from dispersing an unruly gathering to subduing a resisting person. These agents are generally deployed when lesser means of controlling a situation have failed or would be ineffective and an escalation of force is necessary. The active ingredient in OC is non-chemical and thus is less likely to cause injury. Therefore, OC is considered a lesser degree of force, within intermediate weapons, than is CN or CS gas.”  Tucson Police General Orders, 2072.1 Chemical Agents and OC (Oleoresin Capsicum) Spray, at *17.  The Tucson police even make a differentiation between the different types of chemical agents and what the health effects may be from each.

“The Taser may be used in situations where an officer encounters Active Aggression resistance as defined in General Orders. However, any use of the Taser shall be reasonable and based on the totality of the circumstances.”  Tucson Police General Orders, 2074.1 Taser, at *19.

Tucson is not as descriptive about their use of force as Phoenix is, but with a careful reading an individual should be able to piece together a rough policy.  There are other examples of force that are described in the Tucson General Orders, and when the use of it is appropriate.  It is too much to

Mesa

Excessive force is not defined in the pubic Mesa Police Department Policy Manual, although generally referenced several times (not referenced in regard to a specific section).

This is troubling for different reasons.  First, since excessive force is mentioned many times without a reference to a section (for example, see Section XXXX for more on excessive force) it is possible that Mesa Police Department does not have an excessive force policy. If Mesa does not have a excessive force policy of any type that is very troubling.  Second, if Mesa redacted the excessive force policy and did not supply it with its other 1,300 plus polices it provided to me in the Open Records request, that is troubling that they are not being upfront with a policy that affects so many people on a day-to-day basis.

Judicial Application of Use of Force

How the courts apply the laws and the standards of care created by police departments will be analyzed separately in a future article.  I have not analyzed how the Arizona courts decide excessive force claims.  So how all of this information is applied or not applied by the courts is unknown to me.

Please check back soon for the analysis of Arizona courts application of excessive force claims.

Complete Public Copies of Arizona Police Procedures

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s