OF MINIMUM IMPORTANCE AND THE LAW ENFORCEMENT USES OF FORCE

Typically, the pre-service training of law enforcement officers involves hours of arrest-control repetitions practiced on fellow trainees involving twist-locks, joint manipulations, and takedowns. Trainees are required to demonstrate proficiency in each technique to successfully graduate from the training academy. These de minimis (Latin for “of minimum importance”) force techniques are learned and used to separate, guide, and/or control subjects without the use of other techniques and options intended to, or reasonably likely, to cause pain or injury.

Besides joint manipulation and control holds, other examples include using hands or equipment to stop, push back, separate, or escort a subject (Seattle Police Department Manual, 2019) and/or restore and maintain order in a correctional institution (Aramburu, 2013). Police academy trainees learn through personal experience that as a subject becomes non-compliant and/or resistive, the control measures may produce the discomfort to influence that subject’s compliance. If the subject is actively resisting, the associated counter or distraction to regain control can produce injury. If the subject remains compliant and control is maintained, the lack of movement and energy is unlikely to produce significant pain or injury. Generally, it is understood these techniques are not substitutes for reasonable, higher force options.

Often displaying cues not obvious to by-standers or apparent on body worn camera recordings, subjects may begin resistance by tensing and/or resisting efforts towards control and/or handcuffing. Observers may then see law enforcement officers use distraction, or other, techniques to regain control and the effectiveness of the initial di minimis technique (Gillespie, Hart, and Boren, 1998). If the law enforcement officers determine the subject is defeating the minimal technique, the officer may choose to transition to another technique, distract and/or ground stabilize the subject, or select a higher force option or be required to select a force option based on the physical capability under a sympathetic nervous system reaction.

Failure of a law enforcement officer to recognize and respond to resistance or regain control of a subject may necessitate additional force and result in greater opportunities for injury to the subject and/or officers. These “empty-hand” control techniques, applied in 38.5% of the force events, ranked high for more serious injuries. Techniques included "nerve motor point striking and stunning techniques, grounding techniques such as arm-bar take-downs, and other balance displacement methods." Nearly 50% of arrested subjects had minor injuries and approximately 33% remained uninjured. Approximately 14% of these subjects required outpatient medical care and about 4% were hospitalized (Butler, Hall, 2008).

QUESTIONS

How should a witness’ or critic’s lack of understanding and relevant field experience be regarded in the objective analysis of a di minimis law enforcement use of force for reasonableness? Why? What have the courts decided?

Why do you think the courts find some arguments critical of law enforcement uses of force as irrelevant or unsupported?

How should a di minimis law enforcement use of force be evaluated for reasonableness if the subject is injured by a technique that was compromised or defeated by the subject’s resistance? What if the injury was sustained during an escalation of force due to the subject’s resistance?

How may this relate to a citizen's use of force in self-defense?

REFERENCES

Aramburu, T. (2013). “The Role of ‘De Minimis’ Injury in the Excessive Force Determination: Taylor v. McDuffieand the Fourth Circuit Stand Alone.” 14 BYU Journal of Public Law. 313.

Butler, C., Hall, C. (2008). “Arrest, Use of Force by Police and Resulting Injuries to Subjects and Officers.” Law Enforcement Executive Forum (LEEF).

Giilespie, T., Hart, D., Boren, J. (1998). “Police Use of Force; A Line Officer’s Guide.” Varro Press, Shawnee Mission, KS.

Seattle Police Department Manual (2019). Seattle.gov.