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Gary T. Klugiewicz Klugie's Correctional Corner
with Gary T. Klugiewicz


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A view from the sidelines: Passive vs. active resistance

Can you deploy a TASER on an inmate who is holding onto his bunk and displaying no other obvious signs of resistance?

This segment of "A View from the Sidelines" was generated by this e-mail by Sgt. Dominic Turner of the Door County, Wis. Sheriff’s Department.  Although he is addressing his question on the justification of using force on an inmate based on Wisconsin training standards, his question has application to all correctional use-of-force situations.  Remember that the purpose of the View from the Sidelines Section is not to determine whether the action is right or wrong but rather to look at the issues.  His question can be broken down into two parts:

1. What is the difference between passive and active resistance?

2. Whether you can use a TASER to subdue an inmate who is not complying with you verbal commands but is not at the moment exhibiting active / physically threatening resistance?

Here is original e-mail:

Gary,
I realize scenario questions can be hard to address over email considering all the potential factors which could be involved, but if you could offer some insight I feel this will help me define the boundary lines between passive resistance and active resistance.

In a correctional setting, an inmate has pulled themselves under a bunk and is resisting the physical efforts of the COs to pull him out by holding on to the leg of the bunk. If the inmate was flailing his legs or wiggling his body so the CO could not get a good hold of him then I could see this to be active resistance and open the door for options like using a taser or other methods to free and gain control of the subject.

But if the subject was just holding on for dear life and not doing the above mentioned movements, would this be enough for active resistance? The fact that the subject is holding on would to me be physically resisting, but it wouldn’t necessarily be fighting with the COs or creating risk to anyone or themselves which would land it more in the passive range. I realize there could be a number of factors in a situation leading to the totality of the circumstance which could sway the resistance or solution one way or the other, but with just these basic facts I’ve given, what would you say? 

Basically what is being asked in my department is, could you use a taser on a subject who is just holding on to a stationary object, to prevent movement and control from the COs, with no other threat assessment factors coming into play? The intention of the taser would be to release the subjects grip in order to gain control of the inmate.

Thank you for your time,
Sgt. Dominic Turner                                                                                    
 

Here is my response: 

Dominic,
Good Morning.
Thanks for the inquiry.  This is great question.  Do you mind if I answer this online on CorrectionsOne.com?  I can either use it using your name or do it anonymously.  Please let me know.

The short answer to your questions, Is the use of the TASER in the situation you describes appropriate? is that "it depends on the totality of the circumstances.  In Wisconsin, the use of the TASER is dependent on the subject displaying "active resistance" or its threat.  “Active resistance” occurs when an officer encounters behavior that physically counteracts his or her attempt to control, and which creates risk of bodily harm to the officer, subject, and/or other person.”

Remember that we define resistance as more than what you describe as passive and active resistance.  We don't even use the term passive resistance because the term is so misunderstood.  Passive resistance is truly passive, i.e, the subject is not physically resisting in any way.  That is why we use a full spectrum of resistance that goes from:
1).        Unresponsive (Subject apparently unconscious).
2).        Non-responsive (Subject conspicuously ignoring).
3).        Dead-weight tactics (Subject decision not to assist his/her movement).
4).        Resistive tension (Subject tightening up muscles).
5).        Defensive resistance (Subject attempting to get away).
6).        Aggressive / active resistance (See explanation listed below).
7).        Physical assault (Subject personal weapons striking at officers).
8).        Great bodily harm assault (Subject's actions/ability to cause harm).
9).        Life threatening assault (Subject's ability to cause death).
10).      Life threatening weapon assault (Subject's ability to cause death).

Based on the limited information that you have provided, you seem to be describing resistive tension.  Having said this, I am not saying that this subject wasn’t displaying active resistance or that the use of the TASER wasn’t appropriate. 

What you are describing has not yet become "active resistance" based on the totality of the circumstances explained by you.   While we have an inmate who is demonstrating “behavior that physically counteracts an officer's attempt to control” the inmate, where is the "risk of bodily harm to officer, subject, and/or other person?”   There a whole series of reasons that could explain the “risk of bodily harm.”  Let’s say this was a large, strong inmate with a history of physical violence towards staff.   If we were to enter the cell in an attempt to physically control him, the inmate could have attacked staff.

Based on this expanded explanation, I think we have met both requirements for active resistance of both counteracting attempts at control and risk of bodily harm to both staff and the inmate.  As in most cases, the articulation of the facts surrounding makes the difference between justifiable use-of-force and force that is determined to be excessive. 

Bottom Line:  Question:  Can you deploy a TASER on an inmate who is holding onto his bunk and displaying no other obvious signs of resistance?  Answer:  It depends ... based on the totality of the circumstances.

Take the time to explain the totality of the circumstances.
Gary T. Klugiewicz

Footnote:  Although your “rules of engagement” may differ the use of any use-of-force option is dependent on your perception of threat.  An officer doesn’t need to wait to be attached before responding to the threat.  On the other hand, the officer after taking action must be able to articulate why his/her force response was reasonable and necessary under the circumstances know to him/her at the time.

Your explanation and risk assessment becomes the cornerstone of whether your force response will be determined to be justifiable or not.

What do you think?  Would the use of the TASER be justifiable based on the circumstances described above?  

About the author




Gary T. Klugiewicz is retired from the Milwaukee County Sheriffs Department where he served three tours of duty "inside the walls" as a Correctional Officer, Deputy, Sergeant, and Captain. Gary has served as a Shift Supervisor, A CERT Team Commander, and a Special Management Team Security Supervisor for mentally ill inmates. Gary has developed defensive tactics training programs for Police, Corrections, Mental Health, and Tactical Teams. He is an instructor trainer for the State of Wisconsins correctional Principles of Subject Control (POSC) Program, the ACMi Correctional Emergency Response Team (CERT) Program, and the Active Countermeasures (Dynamic Entry Training) Program for SWAT Personnel. Gary may be reached by email at: GTKlugiewicz@cs.com





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