Part VII: Control vs. Compliance and the Time Factor
Intermediate weapons have posed a challenge to the courts, to the officers using them, and to law enforcement trainers. When do they fall within the range of reasonableness? The Supreme Court has not ruled definitively. Circuit courts have held that an officer does not violate the Fourth Amendment by using an ECD to control the active resistance of a suspect.19 Others hold that active resistance, alone, is not enough and that an ECD may only be used when a police officer is confronted with an immediate threat.20 It would be unreasonable to use a stun-drive ECD simply to remove an arrestee from a car in a circuit requiring an immediate threat, even after the arrestee stiffened her body and clutched the steering wheel to frustrate the officers’ efforts.21
“So how do we get the arrestees out of the car?” seems a reasonable question from officers. To quote one judge, “There are only so many ways that a person can be extracted from a vehicle against her will, and none of them is pretty.”22
Perhaps the greatest challenge is for law enforcement trainers. What should they teach the students about intermediate weapons? That question is particularly difficult for instructors at the Federal Law Enforcement Training Center where graduating students may find themselves assigned to any circuit. The goal is to find the best practice so that officers can be reasonable anywhere.
Teaching the difference between control and compliance is a step in the right direction. Intermediate weapons are control tools, not compliance tools. Even in a situation where active resistance would be enough to use an intermediate weapon, the facts must still suggest a need for one. Simple statements that “The suspect was non-compliant” or “He didn’t do what I said” are never enough. Finally, “time” is an important factor. And this may be the key to being reasonable in any circuit. If the suspect is not an immediate threat, there is generally time to consider other less intrusive options.
19 See Hagans v. Franklin Co. Sheriff’s Office, 695 F.3d 505, 509 (6th 2012); see also Crowell v. Kirkpatrick, 400 Fed.Appx, 592 (2nd Cir. 2010)(using a stun-drive ECD to force a protester to release herself from a heavy barrel to which she had chained herself did not violate the Fourth Amendment. She was told to leave; warned that the ECD would be used; told that it was painful; and given the opportunity to release themselves before subsequent applications.)
20 See Armstrong v. Pinehurst, 810 F.3d 892, 903 (4th Cir. 2016)
21 See Brooks v. City of Seattle, 661 F.3d 433 (9th Cir. 2011)
22 Brooks, 661 F.3d at 459 (Judge Silverman, Concurring)