Earlier this year, in part one of this article, I highlighted all of the published experimental studies using human subjects on restraint asphyxia. Of the nine studies, six followed the rigors of scientific research and the conclusions overwhelming support the fact that neither the prone restraint position nor hogtying a violent subject plays a significant risk in ventilatory compromise. Here we present the trends of published §1983 case litigation regarding the subject matter and provide suggestions for officers, trainers, and administrators.
Case Decision Trends
Despite the evidence of published scientific research on restraint asphyxia, cases are still being litigated and court decisions are almost evenly split. A full analysis of published §1983 cases focusing on positional asphyxiation from 1983 to 2009 shows that police have slightly more than a 50 percent chance of prevailing in the litigation. During the 26-year period, the police prevailed in 54 percent of the litigation while the plaintiff prevailed in 48 percent, a six percent margin of prevailing in the case.
The patterns of 254 published §1983 case decisions on positional asphyxiation deaths were examined by using the LexisNexis Academe database and 149 exclusively addressed restraint asphyxia. These case decisions only include published decisions and not cases settled out of court. The litigation involved deaths of individuals who were prone and simply handcuffed with hands behind the person’s back, the person was hobbled, and or the person was hogtied.
From 1983 to 1998 at total of 95 §1983 cases were published regarding any violent sudden in custody death and 40 decisions exclusively addressed the use of restraints and restraint asphyxia (55 cases dealt with excited delirium and/or mental illness). The police prevailed in 58 percent of these cases. Further, from 1999 to 2009 159 case decisions were published and 109 cases specifically addressed the issue of restraint asphyxia. The police prevailed in 53 percent. Of these published decisions, 86 percent involved police restraint incidents and 14 percent occurred in a county jail, police lock-up, and or a medical facility with a police response. These trends show that the courts are not consistently dismissing such allegations, that published decisions have more than doubled since 1998, and that prevailing trends for the plaintiff have increased since 1999.
Selected Case Decision Examples
Case decisions are almost evenly split and a synopsis of selected case decisions on this topic reflect and reinforce the tension between science and the law. In Hill v. Carroll County (2009) the Appellate Court affirmed the lower court’s summary judgment decision agreeing that hogtying a combative arrestee who died in custody was objectively reasonable. The court noted that plaintiff’s medical expert could not cite a single journal or report supporting that restraints are dangerous to a morbidly obese woman. Further, the expert could not offer one study showing that the hogtying restraint technique is inherently dangerous to arrestees who are not drug abusers exhibiting cocaine-induced psychosis.
In Lewis v. City of West Palm Beach (2009) the Appellate Court affirmed the lower court’s summary judgment, holding that hogtying a combative arrestee who later died was objective reasonable force. In Williams v. Chambers (2009), the court awarded summary judgment to two troopers who held a violent arrestee prone and on his side secured only in handcuffs for several minutes, with the aid of two deputies, and he later died. The court held that holding a violent resisting arrestee down on a busy highway was an objectively reasonable use of force.
In Abdullahi v. City of Madison (2004) the court grated summary judgment to defendant officers holding that applying a knee on the shoulder blades on a prone arrestee, who was under the influence of drugs and violent, so that he could be secured in handcuffs and a hobble strap, was objectively reasonable force. Further, the courts in Pliakos v. City of Manchester (2003) and Estate of Phillips v. City of Milwaukee (1996) held that hogtying and restraining a person prone is not unconstitutional in all cases and prone positioning of a suspect is a reasonable method to control and restrain a person, comporting with the Fourth Amendment. In Price v. County of San Diego (1998) the court based its summary judgment decision on the Chan et al. (1997) study holding that the hogtied position did not constitute excessive force as consumption of methamphetamine led to the arrestee’s death.
Conversely, in Champion v. Outlook Nashville, Inc. (2004) a jury determined that it was unreasonable for officers to apply pressure to the arrestee’s back as he laid prone, handcuffed and legs restrained, while using pepper spray. The jury awarded $900,000 to the plaintiff. In Jones v. City of Cincinnati (2006) the court denied summary judgment to six defendant officers who struck a violent man with batons, used pepper spray, secured him in handcuffs, left him on his stomach, and he later died. The court reasoned that because the man was obese the risk of positional asphyxia was elevated and was ignored by the officers.
In Lewis v. City of Hayward (2006) officers responded to a man exhibiting behaviors of excited delirium, controlled him, placed his legs in the WRAP device which immobilizes the legs, and he died. The officers had struck with him batons and used pepper spray to control him prior to handcuffing him and applying the WRAP. An autopsy showed that he had a grossly enlarged heart and that he died of PCP and cocaine intoxication. A second autopsy showed that he died of positional asphyxia and the court denied summary judgment, holding that officers used excessive force prior to securing his legs. In Cruz v. City of Laramie (2001) the court ruled that hobbling a violent arrestee with an apparent diminished capacity from ingesting drugs, that later died of positional asphyxia, was objectively unreasonable. The court stated that the hogtied restraint procedure is not unconstitutional but officers could not apply it when the person’s diminished capacity is apparent. Likewise, the courts in Ramirez v. City of Chicago (1999), Gutierrez v. City of San Antonio (1998), and Swans v. City of Lansing (1998) found in favor of the plaintiffs. The courts determined that the officers violated the arrestee’s constitutional rights by using excessive force in applying their restraint techniques.
All of these cases involved officers hogtying the arrestee after a violent restraint incident. Each subject, however, had an enlarged heart, had an extensive drug history, and were either under the influence of an illicit drug or was psychotic from a mental illness at the time of the confrontation.
Conclusions and Implications
The experimental studies examined overwhelming refutes the hypothesis that either the hogtied or hobbled positions places a resisting person at risk for restraint or positional asphyxia. The status of the research demonstrates that being restrained in the prone position and hobbled or hogtied appear to be no more physiologically dysfunctional than any other position, and medically as well as for officer safety, are acceptable positions for controlling and restraining violent persons. The research has shown that positional asphyxia by itself is not a sufficient cause of death, and other causes of death and factors should be considered (such as excited delirium, internal organ abnormalities, and mental illness). Placing a person prone for control and restraint is the preferred position and is the safest position for officers. Even with their respective limitations experienced in a laboratory experiment, the findings of the research are supported by the basics and fundamentals of exercise physiology.
Litigation shows that relying on prior bad science and poor research procedures and equipment, in lieu of new and modern research, is frequently used to postulate a prevailing legal argument. This can create a conflicting playing field when the law and science intersect in evaluating a use of force and a sudden restraint death legal action. Ensuring to consult with qualified and knowledgeable medical and police experts can assist in successfully explaining the complicated science associated with the case as well explaining how the police used appropriate restraining and use of force techniques, as well as force equipment.
Based on study findings police officers and their supervisors should address several key components. First, use of force and restraint policies should be reviewed and revised as warranted as they pertain to special needs populations (substance abusers and the mentally ill). The policy should guide officers in all of the authorized equipment and control techniques to apply when facing a violent restraint encounter. Appropriate restraint techniques and equipment authorized should be addressed in the policy as well as addressing appropriate medical intervention strategies.
Second, ongoing training to relevant policies and the use of less-lethal force equipment for violent restraint incidents should be provided. Command personnel should provide direction and provide officers with the proper types of restraint equipment to use in the field when confronting a violent restraint incident.
Third, training scenarios which depict these types of incidents should be provided and officers should regularly practice multiple officer control and restraint techniques which include the use of authorized restraints and less-lethal equipment specified by policy. Control and restraint in the prone position of a violent and combative subject is the preferred and safest position for responding officers and found to be constitutional by the courts. When tactically feasible, multiple officers should respond to these types of violent incidents and control and restraint should be accomplished quickly, based on the totality of the incident circumstances, and confrontation variables (Klugiewicz, 2000; Ross and Siddle, 2003; Tardiff, 1996).
Fourth, periodic training on the sypmtomologies and subject behaviors associated with sudden restraint in custody deaths should be provided as well as updates on legal cases reflecting court decisions. Officers should be taught to monitor signs of medical distress of arrestees and to request medical personnel as warranted. The preferred method of transport is by emergency medical vehicle. Documenting all subject behaviors and resistance, language used, all attempts to verbally control the subject by officers as well as documenting all use force control techniques, less-lethal force equipment used, all restraint equipment used, and monitoring procedures used, as well as summoning back up, health care providers, and command personnel should be articulated in a written report. Agency personnel responsible for investigating a sudden in custody death should also receive training to the unique features commonly associated with these deaths.
A sudden death in custody creates controversy for the responding police and detention officers, their supervisors, medical personnel, and the legal profession. While a sudden restraint death can not be eliminated (citizens will continue to use illicit drugs and the police will continue to encounter the mentally ill) using the knowledge from sound science appropriately by all involved constituents in a restraint incident can assist in a better measured response. Instituting a risk-management approach to these types of incidents can place the agency in the best position to defend an allegation of wrongful sudden death.
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Ross, D.L. and B.K. Siddle (2003). An analysis of survival stress in police use of force
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Tardiff, K. (1996). Assessment of and management of violent patients. American
Psychiatric Press, Washington, D.C.
Abdullahi v. City of Madison, No. 03-C-631-C, Lexis 22770 (W.D. Wis. 2004)
Chapman v. Outlook Nashville, Inc., 380 F.3d 893 (6th Cir. 2004)
Cruz v. City of Laramie, WY, 239 F.3d 1183 (10th Cir. 2001)
Estate of Phillips v. City of Milwaukee, 928 F. Supp. 817 (E.D. Wis. 1996)
Gutierrez v. City of Antonio, 97-50082 (5th Cir. 1998)
Hill v. Carroll County, MS, No. 08-60516, Lexis 23730 (5th Cir. 2009)
Jones v. City of Cincinnati, 1:04-CV-616, Lexis 75430 (S.D. OH. 2006)
Lewis v. City of West Palm Beach, FL, No. 06-81139-CV-DTKH (11th Cir. 2009)
Lewis v. City of Haywood, 195 F.3d 1226 (8th Cir. 1997)
Pliakos v. City of Manchester, NH, No. 01-461-M, Lexis 12589 (DNH, 2003)
Price v. County of San Diego, 990 F. Supp. 1230 (S.D. Cal. 1998)
Ramirez v. City of Chicago, 82 F. Supp. 836 (N.D. Ill. 1999)
Swans v. City of Lansing, 65 F. Supp. 2d 625 (W.D. Mich. 1998)
Williams v. Chambers, No. 4:07CV01409 ERW (E.D. MO, 2009)