Use of force and the mentally ill

A C1 Member Asks: Is it the industry standard or policy not to use pepper spray on a known mentally ill person?

I have reviewed case decisions on the use of pepper spray dating back to 1970 and did not come across a decision that would prohibit an officer in a detention facility or a street officer from using pepper spray on a known mentally ill person. Also, over the years I have reviewed use of force policies for agencies have not seen such a policy statement.

While it is frequently difficult to agree on many so-called “industry standards” when it comes to using varying use of force techniques or equipment, this appears to be an administrative decision to design policy language which indicates such a prohibition. I am unaware of a "standard" that prohibits such use. There, however, may be a case  settled out court or a consent decree requiring such policy language or restrictions for a specific agency or area, but absent that caveat, I am unaware of such provisos.

(AP Photo/Chris Pizzello)

Additionally the ADA does not identify such provisions, even when some plaintiff’s attorney may attempt to do so.

The concern here appears to be one of policy language that significantly restricts an officer in protecting him/herself, safely engaging with such a person, and protecting the mentally ill person. Frequently, policies are written with little thought as how the policy may impact field operations or how an officer may actually implement the policy.

Use of force responses are dictated by the demonstrated resistance and behaviors of the person, the perception of the officer, based on the totality of the circumstances, and not on some other special consideration. Of course there are innumerable variables that may enter the equation which may be considered prior to an officer using any degree of force.

But it remains the standard that it is the behaviors of the person that directs the level of force an officer employs. For example, if a mentally ill person was in the process of choking someone, whether it be in a jail or a house, etc., using pepper spray may be a viable option to incapacitate the person. Also, if a mentally ill person adapts a threatening stance with his fists clenched and threatens an officer, again, pepper spray may be a viable option to consider. Each situation must be evaluated on the merits of the circumstances but to make a blanket policy statement about not using pepper spray on a known mentally ill person severely hinders an officers use of force option. This is of particular importance when detention officers may have limited force options available to them.

Use of force policies should be crafted around pertinent U.S. Supreme Court holdings and legal standards which emerge from these decisions. Under the Fourth Amendment
the Graham v. Connor (1989) case should be referenced in accordance with the objective reasonableness standard (see also, Brosseau v. Hagen, 2004; & Scott v. Harris, 2007). In corrections and detention settings the Hudson v. McMillian (1992) case should be reviewed pertaining to force used maliciously and sadistically for the purpose of causing harm.

It would also be instructive to review the Johnson v. Glick (1973) case under the shocks the conscience standard (14th Amendment). The case decision sets the standard
and not a special classification of a person. Use of force policies should be written which allows options for the officers based on the varying types of encounters he/she may confront. They should be written with enough latitude that it allows an officer to use his/her judgment and perception as the circumstances unfold.

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