By Tate McCotter, NIJO Executive Director
For over two decades use of force incidents are listed as one of the top lawsuits for inmate filed litigation, reaching the highest courts of the nation. Case studies reveal four common plaintiffs’ allegations when asserting an excessive use of force claim.
- The first type generally claims the responding officer(s) over-reacted by using the degree of force employed. This often is coupled with allegations of an officer’s misused equipment, physical control techniques, and his or her failure to follow training and an agency’s policies on use of force.
- A second type of allegation by plaintiffs frequently asserts there was an administrative failure to train and supervise which resulted in the inappropriate or excessive use of force. Often, these cases try to point out management failures from the top in providing correctional officers with the training necessary for officers to be proficient in the deployment of force and act in accordance with legal and constitutional requirements. This may include hands-on physical force and tactics and the utilization of equipment, such as tasers, OC spray, flashbangs or various restraint devices.
- Plaintiffs also claim administrations failed to thoroughly investigate and take excessive force incidents seriously. They often try to promote the agency has created a “culture” of tolerating or encourage practices and patterns of excessive force by staff. This type of allegation was used against former sheriff Leroy Baca of Los Angeles County, CA, where the FBI and U.S. Department of Justice investigated the “persistent pattern of unreasonable force in the Los Angeles County Jail” which had culminated in criminal charges against at least 21 officials and a dozen convictions.1 This came on the heel of many lawsuits accusing Baca of failing to stop inmate abuse in the Men’s Central Jail, finding him personally and monetarily liable for allowing the known abuse and culture to continue.2
- A fourth type plaintiffs allege is that an inmate suffered some type of physical injury as a result of the excessive force and timely and adequate medical care was denied or delayed.
While this type of allegation may not appear to be as serious of an allegation as other stated use of force types, it is one of considerable consequence, often ending in substantial settlement money offered to the plaintiffs which could have been avoided by correctional officials rendering aid after the use of force. Inevitably the use of force occurs in facilities to establish and maintain custody, control and order of a facility. Every jail varies and has different means to employ physical force and restraining devices. Considerable effort is made by agencies to avoid liability issues and proactively address potential excessive force claims and allegations against administrations for failure to train and supervise.
Deliberate indifference to a necessary health care need of an inmate subdued by use of force is unconstitutional punishment because it may constitute the “unnecessary and wanton infliction of pain.”3 Attention to and the treatment of known serious medical needs is constitutionally required.4 Incidents involving use of force often end up in litigation – even when the use of force was necessary and reasonable. It is essential that staff have a working knowledge of why timely and adequate medical care might be called into question. In light of the high intensity accompanying a use of force incident:
- an officer might not take an inmate’s word seriously of an alleged injury immediately following the deployment of physical force (officers may feel it is a commonly played, unfounded inmate tactic to be later parlayed into a lawsuit accusation.
- the inmate may not appear to be injured whatsoever (were there internal injuries?)
- to an untrained non-healthcare professional, maybe it just appears any visible injuries were not serious (i.e., the inmate could use a band-aid – “just a scratch.”)
Officers are not medical experts and should not assume a diagnosing role. While “[not] every malevolent touch by a prison guard gives rise to a federal cause of action”5, it is important for officials to communicate efforts to reduce the potential for or seriousness of injuries resulting from trying to control inmates’ actions.
Policies and Procedures.
Policies and procedures should ensure that inmates’ serious medical needs are met. Medical examination should be provided for involved inmates as soon as reasonably feasible following a use of force action. Medical examination documents efforts following a use of force incident reflect care, rather than leaving an assumption to the courts the matter got personal and the officers were deliberately indifferent or failed to render aid.
Many facilities do not have medical staff immediately available. In such cases, some general protocol to consider may include efforts to calm the inmate, yourself and your fellow officers; determine level of consciousness and obvious medical needs (checking airways for breathing, circulation), decontaminate area (where chemical agents were deployed); treat to the level of your training and available resources; and continue to monitor the inmate while in your care.
Training line staff sets forth the requirements for providing medical examinations and, when needed, treatment of inmates against whom it was necessary to use physical force. It may be useful to articulate rationale for medical interaction, which may include the following:
A. Identify obvious injuries requiring treatment;
B. Discover and treat undetected injuries;
C. Document the absence of injuries; and
D. Provide medical documentation to protect jail staff members from false or exaggerated claims of injury.
Reports and Documentation.
It is not unusual for injuries to occur during even the most benign efforts of officers to control inmates. Explaining what caused individual injuries, if known, may be helpful in the event of litigation. Information in use of force reports should include documentation of efforts to call for medical examination and emergency care6 (i.e.; activation of EMS/ambulance, if appropriate).
1. United States v. Baca, U.S.D.C. (C.D. Cal.), Case No. 2:16-cr-00066-PA. (2016); United States v. County of Los Angeles, U.S.D.C. (C.D. Cal.), Case No. 2:15-cv-05903-DDP-JEM (2015); Brown v. County of Los Angeles, U.S.D.C. (C.D. Cal.), Case No. 2:15-cv-02162-DDP-FFM (2015); Rosas v. Baca, U.S.D.C. (C.D. Cal.), Case No. 2:12-cv-00428-DDP-SH (2015); Carrillo v. Zunggeemoge, U.S.D.C. (C.D. Cal.), Case No. 2:12-cv-02609-DSF-PJW (2014); Holguin v. County of Los Angeles, U.S.D.C. (C.D. Cal.), Case No. 2:10-cv-08011-GW-PLA (2013)
2. Willis v. Baca, et al.2:10-cv-07390-JAK-DTB (2013); Starr v. Baca, 652 F.3d 1202 (2011)
3. Estelle v. Gamble, 429 U.S. 97 (1976)
4. Estelle v. Gamble, 429 U.S. 97 (1976); Clark-Murphy v. Foreback, 439 F.3d 280 (CA6 2006); Ramos v. Lamm, 639 F.2d 559, 575 (CA10 1980), cert. denied, 450 U.S. 1041 (1981); Gomm v. DeLand, 729 F. Supp. 767, 778 (1990), affirmed, 931 F.2d 62 (CA10 1991) (not deliberately indifferent because the inmate’s surgery demands were denied); Forton v. County of Ogemaw, 435 F.Supp.2d 640 (E.D. Mich. 2006) (officer not liable because he lacked knowledge of the medical problem).
5. See Johnson v. Glick, 481 F.2d 1028, 1033 (CA2) (“Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights”), cert. denied sub nom. John v. Johnson, 414 U.S. 1033 (1973).
6. See Legal-Based Jail Guideline H04.02.01 Emergency Response