The UC pepper spray case and the punch-in-the-nose test

You don't want to put tax payers' money in the pockets of people who break the law, do you?


California has had its share of problems lately. Most recently, the issue is the almost $1 million of taxpayers’ money to be paid to protesters at UC Davis. Total costs are estimated to be close to $2 million. 

But I’m always a little surprised by the comments of some in the law enforcement community following such an incident.

I’m a little surprised by the misunderstanding of the laws and court decisions that guide our actions.

Ask, Tell, Make
I think some of this comes from good intentions but misapplication of training. I’ve always liked the motto, “Ask, Tell, Make.”

I like it because it involves a plan and positive action. Ask a subject once, tell them what to do, and if they fail to do it, make them do it. This is excellent guidance with one caveat. When we “make” someone do something, we have to do it within the parameters of the law and policy.

This is where we oftentimes get in trouble.

“May I see your license please?” 

“Show me your license or you will be arrested.”

And then ZAP! goes the TASER. Not a good use of force and your department will probably write a big check.

We took an oath to protect and serve. We took an oath to enforce and abide by the laws of this country. If we don’t understand the law that guides our use of force actions, then we risk violating constitutional rights. If the courts think we should have been aware that we were violating these rights, then we can be held personally responsible.

Part of the problem is the traditional use of force continuum. Its flaws have been discussed in other articles in law enforcement publications, but I believe one of its major drawbacks is it leads officers to (incorrectly) think of constantly escalating force until they find something that works.

For example, several protesters refuse to leave. You try asking them to leave — doesn’t work. You tell them they are breaking the law and tell them to leave — doesn’t work. You tell them they are under arrest and to stand up — doesn’t work. You try pressure points and control holds — doesn’t work.

What do you do now? How about just keep on going up the ladder!

Let’s see, what’s next? I know, how about pepper spray, TASER, or a good old punch in the nose! That should work!

Don’t do it. Once you resort to an ECD, pepper spray, or personal weapons on a “non-violent” protester, you have stepped across the line into a non-lawful use of force option. Bad things will happen to you and your department (in the UC Davis case, the Lieutenant and the Chief lost their jobs).

You don’t want to get sued.

You don’t want your department to get sued. You don’t want to put taxpayers’ money in the pockets of people who break the law.

The Punch-in-the-Nose Test
In an earlier article (FBI Law Enforcement Bulletin, September 2007) in which I explained my Dynamic Resistance-Response Model (DRM), I outlined the four categories of resistance typically recognized by the courts and the tools that can be lawfully used for those categories.

For non-threatening resistors (and it is the officer who makes the determination if a person is perceived as a threat), you may use pressure points and control holds, but you may not use personal weapons, impact weapons, ECDs, or pepper spray. Those tools are reserved for resistors who are a threat (again, as determined by the officer).

Part of the confusion may be officers’ misunderstanding of Graham v. Connor, in which the Supreme Court determined officers would not be judged with 20/20 hindsight, but rather by the standard of a reasonable officer on the scene. And who ever thinks they are unreasonable?

So if I think it is reasonable, then it must be, right? The problem is some officers never go beyond the statement of a “reasonable officer” when reviewing Graham v. Connor. The Supreme Court then went on to describe a three-prong test to establish if the action was reasonable.

Generally, the three prongs are:

1.) What is the nature of the crime? (the more serious the crime, the more likely higher levels of force will be used)
2.) Is the subject trying to flee or evade arrest?
3.) Does the subject present an immediate physical threat to the officer or someone else?

The third question is really the critical one. The courts have repeatedly told us we can’t use personal weapons, pepper spray, an ECD, or impact weapon on someone we don’t believe to be a physical threat.

Let’s apply the three prong test to the UC Davis case.

1.) What is the nature of the offense? Trespassing.
2.) Are the protesters trying to flee or evade arrest? NO! It’s the opposite problem. The knuckleheads won’t leave!
3.) Are they an immediate physical threat? Sure didn’t look like it and there was never an argument made that the protesters were threatening anyone’s safety.

So, can you use pepper spray? NO! Not unless you want to lose your job and get sued.

To simplify the thought process, I use the Punch-in-the-Nose Test. Under this circumstance, would I feel comfortable walking up to the person and punching them in the nose?

If I believe the person is a physical threat to me or someone else, the answer would be yes. But I don’t think too many officers would feel comfortable walking up to a protester sitting on the ground singing Kumbaya and punching that person in the nose.

It All Comes Down to Training
Why does this happen so often? Why do we see good, hard-working officers using greater force than permitted in these situations? One possible reason is they don’t fully understand the law (and thus the purpose of this article). This is not the officer’s fault. This is the department’s fault.

It’s the department’s responsibility to ensure its officers understand the law. A lack of training or inadequate training is a big problem.

Officers are typically hard-charging, “get it done” kind of people. So when they are unable to resolve the issue (in this case, the removal of protesters), they tend to go up the continuum to find a tool to help them succeed. Then they get in trouble. This is a training issue.

We should spend a great deal of time on defensive tactics because it is an officer safety issue. Unfortunately, very few departments invest the necessary time and training to ensure its officers are proficient in these critical skills.

When defensive tactics training is given, it usually focuses on the threatening resistor — the subject who is trying to hurt the officer.

This makes sense, but we also need to devote training time on how to deal with non-threatening resistors. If officers don’t have tactics and techniques to successfully resolve a non-threatening resistor situation, they will sometimes resort to inappropriate tools.

Training is time-consuming.

Training is expensive.

But training is also life-saving, not to mention cost-saving in the long term. It goes back to the old saying, “Pay me now or pay me later.”

It’s just much more expensive, and possibly tragic, when you choose to pay later.

Know the law, train for all conceivable situations, and stay safe. 

About the author

Chuck Joyner was employed by the CIA from 1983 to 1987, and was a Special Agent with the FBI from 1987 until his retirement in October 2011. Chuck is the creator of the Dynamic Resistance Response Model (DRRM), a modern Use of Force model. He currently is the President of Survival Sciences, LLC, offering training and expert testimony to law enforcement on use of force topics.

For more information, visit SurvivalSciences.com

Contact Chuck Joyner

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