By: Darrell L. Ross, Ph.D.

The occurrence of a non-firearm arrest-related death (ARD) of a violent subject is rare and estimated to occur once in every 2,600 use of force encounters.1 Even when law enforcement officers (LEOs) apply reasonable force measures to control and restrain the subject, he or she may unexpectedly die. Regardless of the cause of death, the political fallout can be immense for the involved LEOs and the involved agency, and the incident can create polarization between the community and the involved agency. The incident may lead to criminal prosecution of the involved LEOs, but most assuredly it will generate a civil lawsuit filed against the involved LEOs and agency administrators.

This is the second in a series of four articles which examines issues associated with an ARD. This article reviews the common liability claims filed in accordance with 42 U.S.C. §1983 which are associated with these incidents. §1983 is the primary vehicle used to file a civil action claiming that the involved LEOs and agency administrators violated the Constitutional rights of the decedent. 1 2 The assessment is based on a review of 850 published §1983 ARD cases filed against LEOs.

Because an ARD is temporally associated with the force measures used by the involved LEOs, claims filed under §1983 are evaluated in accordance with the Fourth Amendment, the United States Supreme Court’s (SCOTUS) decision in Graham v. Connor (1989), 3 and the “objective reasonableness” standard. Medical care claims and claims filed against agency administrators are filed in accordance with the standard of “deliberate indifference.” 2

Claims Against Involved LEOs

The collective analysis of the published §1983 cases, reveals that, generally, twelve broad

claims are filed against the involved LEOs and against agency administrators. Of these claims, seven are filed against the LEOs and five are filed against agency administrators. The plaintiff’s counsel seeks compensatory damages and frequently seeks punitive damages against the involved LEOs.

First, a claim will assert that the LEOs used excessive force which contributed and/or caused the death, as a result of using: physical control techniques; intermediate weapons (i.e., TASER, an aerosol, impact weapon, projectiles, and a canine); and the use of restraints associated with the LEOs applying their weight on the subject during the prone restraint process (i.e., handcuffs and leg restraints). Second, a false arrest/imprisonment claim may be filed. Third, a claim will assert that the LEOs failed to consider the “diminished capacity” of the decedent and failed to wait for back-up, failed to use de-escalation techniques, and failed to call the Crisis Intervention Team.  Fourth and Fifth, associated claims supported by medical experts allege that the LEOs failed to appreciate the mental or medical condition of the decedent, acted with “deliberate indifference,” and failed to accommodate the subject, violating the Americans with Disabilities Act. Sixth, a claim may be filed asserting that the LEOs failed to provide timely medical care to the decedent, underscoring the claim of deliberate indifference. Seventh, a claim may be filed that LEOs on scene failed to intervene with other LEOs allegedly using excessive force during the incident.

Application of the Graham Criteria

In their decision in Graham, SCOTUS established criteria with which to review a claim of excessive force within the standard of objective reasonableness. Determining whether an LEO’s use of force is objectively reasonable is assessed within the totality of circumstances based on the perception of the LEO at the moment the seizure occurred, including, but not limited to: (1) the severity of the crime at issue; (2) whether the subject posed an immediate threat; (3) whether the suspect is actively resisting seizure; (4) whether the circumstances are tense, uncertain or rapidly evolving; and (5) whether the subject is attempting to evade seizure by flight (see also Scott v. Harris, 2007).4

While all of the criteria are considered, many of the lower courts decisions focus on whether the subject posed an immediate threat to the safety of the LEO or others, and whether the subject was actively resisting the seizure. A mere statement that an LEO feared for his or others safety is insufficient, and there must be objective factors to justify the concern based on the nature of the threat.5

Many courts have adopted a “threat risk factor” analysis to assess the degree of threat and  apparent threat posed by the subject, including: verbal threats to harm the LEO or others; quickly advancing/charging the LEO; exhibiting self-injurious behaviors; the size of the subject; assaulting and attacking the LEO; scene evidence of property damage or evidence of assault against others; responding to an assault in progress; posing a grave danger to others; reaching for the LEO’s duty belt; grappling with the LEO; possessing or access to a weapon; creating a safety risk and escalation of violence; and the subject’s behaviors posed an immediate and dangerous risk of serious physical harm to LEOs or others. The courts balance the risk and gravity of the threat factors posed by the subject against the degree of force reasonably necessary to eliminate the threat.6-8

The courts’ review of active resistance displayed by a subject is frequently open to interpretation. Generally, courts define active resistance to mean a subject’s physical movements to defeat an LEO’s attempt to control the subject including: bracing, tensing, or pushing the LEO; actively physically struggling or wrestling with an LEO; punching and kicking at them; strength and stamina of the subject; lunging and charging the LEO; disobeying an LEO’s commands; thrashing and kicking the LEOs; and standing up during and after being restrained on the ground.9-10

Additionally, the Fourth, Sixth, Ninth, Tenth, and Eleventh Federal Circuit Appellate Courts also consider whether the subject’s behaviors manifested a “diminished capacity” in order to examine the reasonableness of an LEO’s use of force.11-15 A subject exhibiting violent behaviors associated with a mental illness or excited delirium (ExDS) are frequently considered by many courts to align with a “diminished capacity.” Factors the courts examine may include: disorientation or confusion exhibited by the subject; incoherent speech and bizarre behaviors appear consistent with a mental illness or being under the influence of a chemical substance, or a medical condition; the inability to comply with the LEO’s instructions; and whether the subject exhibited a severe psychological break with reality. While many courts consider the subject’s diminished capacity, it does not preclude an LEO from using a reasonable amount of force to bring the subject under control. Further, SCOTUS has twice held that even though an officer may know that a subject is mentally disabled, an LEO may use force, including deadly force, in self-defense or the defense of another for protection and restraint.16-17   

Claims Against Administrators

Claims filed against agency administrators are based on five general areas. First, the plaintiff’s counsel will assert that the administrator failed to direct the involved LEOs actions in using force and restraint equipment in accordance with the agency’s policies which were Constitutionally defective.18 A second claim asserts that the administrator failed to supervise and discipline the LEOs and had prior knowledge that they chronically acted outside the scope of their authority and agency policy without remediation or termination. A third claim frequently alleges that administrators were “deliberately indifferent” to the Constitutional rights of the decedent by failing to train the involved LEOs in the use of reasonable force and the response to subjects exhibiting diminished capacity.19-20 Fourth, counsel may file a claim asserting that the administrator knowingly hired LEOs that had a propensity for violence. Finally, plaintiff’s counsel may claim that the administrator ratified the LEO’s conduct by failing to perform an investigation or performed a flawed death investigation into the incident.

For example, in Roell v. Hamilton County et. al.,21 the Sixth Circuit Federal Appellate Court affirmed summary judgment for three LEOs who controlled a subject exhibiting diminished capacity behaviors consistent with a mental illness and ExDS. Roell fought with the LEOs by using a hose, a basket, and punched and kicked at them. The LEOs used a Conducted Energy Weapon (CEW) in the probe and drive stun modes but it was ineffective. After muscling and grounding Roell, the LEOs controlled and restrained him with handcuffs and leg restraints, Roell became unresponsive, and LEOs initiated resuscitation efforts until relieved by paramedics. Roell was transported to the hospital where he was pronounced dead. The autopsy showed that the cause of death was from ExDS due to schizoaffective disorder and the death was classified as natural.

There was no evidence that the CEW contributed to Roell’s death and there was no evidence of asphyxia. The court ruled that the LEOs force measures applied were reasonable and necessary based on the totality of circumstances. The court also held that the county’s policies were adequate, that the LEOs were provided with adequate training, and that the sheriff conducted an adequate investigation. The court also rejected an ADA violation claim. 

As the lawsuit proceeds through the civil litigation stages, many claims may be dismissed by the court, but the agency administrator and their defense counsel must be prepared to defend against each claim. Occasionally, courts have denied qualified immunity in these cases.22-23 However, courts are more likely to award qualified immunity, as the Roell decision shows, when LEOs respond with reasonable force options based on the subject’s behaviors, and based on the totality of circumstances. Further, when administrators implement Constitutional policies and provide ongoing training to keep LEOs competent in all authorized use of force measures, and training on responding to subjects demonstrating diminished capacity, and provide proactive supervision of LEOs, liability can be averted.

Based on the review of the common claims filed in an ARD, administrators are encouraged to keep appraised of the court decisions on the use of force, as it continues to be a high liability area. Integrating these strategies, administrators can place their agency in the best position to defend against claims of excessive force and against administrative claims for failure to direct, train, and supervise LEOs.

1. Brave, M (2020, June). Law enforcement use of force standards, degrees of certainty, and scientific probabilities. Government Liability, 24-30.
2. Ross, DL (2018). Civil liability in criminal justice (7th Ed.). Routledge Publisher, NY.
3. Graham v. Connor, 490 U.S. 386 (1989).
4. Scott v. Harris, 550 U.S. 372 (2007).
5. Kady v. City of Sandy, WL 5111101 (D. Oregon, 2008).
6. Ross, DL & Brave, M (2020). Assessing use of force liability and law enforcement response to the naked subject. Law Enforcement Executive Forum, 20: 1-21.
7. Pratt v. Harris County, TX, 822 F.3d 174 (5th Cir. 2016).
8. Zubrod v. Hoch, No. 15-CV-02065-CJW (D.C. N.D. Iowa, 2017).
9. DeBoise v. Taser Int’l. Inc., 760 F.3d 892 (CA8, Missouri, 2014), cert. denied.
10. Callwood v. Phenix City, WL 1122681156115 (M.D. Alabama, 2016).
11. Estate of Corey Hill v. Miracle, 853 F.3d 306 (6th Cir. 2017).
12. Thompson v. City of Indianapolis, WL 4365967 (S.D. Indiana, 2018).  
13. Nelson v. Lott, 330 F. Supp.3d 1314 (D. Alabama, 2018).
14. Cardall et al. v. Thompson et. al., 845 F. Supp. 2d 1182 (D. Utah, 2012).
15. Estate of Mathis v. v. Kingston et al., WL 1033771 (D. Colorado, 2009).
16. City and County of San Francisco v. Sheehan, 575 U.S. 600 (2015).
17. Kisela v. Hughes, 584 U.S. ___ (2018).
18. Monell v. NY City Dept. of Social Services, 436 U.S. 658 (1978).
19. City of Canton v. Harris, 489 U.S.378 (1989).
20. Lewis v. City of West Palm Beach, FL, No. 08-12348 (11th Cir. 2009).
21. Roell v. Hamilton County, Ohio/Hamilton County Brd. of City Commissioners, 870 F.3d 471 (6th Cir. 2017).
22. Martin v. City of Broadview Heights, 712 F. 3d 951, 963 (6th Cir. 2013).
23. Wroth v. City of Rohnert Park, WL 1766163 (N.D. California, 2019).