By: Todd Duncan, NIRMA Law Enforcement and Safety Specialist
THE WHAT
One of the highest-risk areas in modern law enforcement litigation is the continued use of force against a subject who is already restrained or whose resistance has substantially diminished. Courts have increasingly scrutinized strikes, electronic control weapon (ECW) deployments, and chemical spray applications against handcuffed or otherwise controlled individuals.
In the case of Graham v. Connor, 490 U.S. 386 (1989), the U.S. Supreme Court held that all force must be “objectively reasonable” based on the facts known to the officer at the time. Key considerations include:
- Severity of the crime
- Immediate threat posed by the subject
- Active resistance or flight
Once a subject is restrained, the governmental interest served by higher levels of force often decreases dramatically. Courts routinely find that force which may have been reasonable during active resistance can become excessive once control has been established.
The Eighth Circuit Court of Appeals (which sets federal case law precedent for Nebraska) has repeatedly addressed this issue. In Henderson v. Munn, 439 F.3d 497 (8th Cir. 2006), the court emphasized that force against a restrained and non-threatening subject may violate clearly established constitutional rights. Similarly, in Shannon v. Koehler, 616 F.3d 855 (8th Cir. 2010), the court noted that continued force after resistance ends can expose deputies and agencies to liability. Nebraska courts likewise recognize that deputies may use only the amount of force that is reasonably necessary under the circumstances, and unnecessary force against restrained individuals may support both civil liability and criminal scrutiny.
Courts across the country have also treated ECW use as a significant intermediate level of force requiring substantial justification, particularly when used on restrained or minimally resistant subjects.
SO WHAT
Excessive force claims involving restrained subjects are among the most difficult cases for deputies and agencies to defend before juries. Video evidence, body-worn cameras, and witness recordings often capture the transition point where legitimate force becomes legally questionable.
Common legal consequences include federal civil rights lawsuits under 42 U.S.C. §1983; large settlements or verdicts against agencies; personal liability for deputies; and in some situations, criminal investigation or prosecution. There can be professional consequences as well such as termination or decertification, damage to the deputy’s credibility, and loss of community trust.
Importantly, many force cases are not lost because force was initially used, but because deputies failed to recognize when the need for force had diminished. Courts frequently distinguish between “gaining control” and “punishing resistance.”
The legal risk in use of force incidents increases when the subject is handcuffed; multiple deputies are present that are or could help to control the suspect; the suspect is pinned or immobilized; the suspect is intoxicated, mentally ill, or in medical distress; or force continues after verbal compliance or exhaustion.
NOW WHAT
Deputies can significantly reduce legal exposure and excessive force complaints by focusing on restraint transition principles and continually reassessing the threat level, remembering that force must be justified at every moment, not just at the beginning of the encounter.
Once control is achieved, it is important to transition quickly from force to custody, stabilization, and monitoring. The use of ECWs, strikes, and chemical agents should only continue when active resistance or assaultive behavior continues to create a legitimate safety threat. While handcuffs alone do not eliminate all threats, they substantially reduce the justification for higher levels of force. Once the suspect is restrained, deputies must monitor them closely for medical distress, especially after ECD exposure, OC spray, or prolonged physical struggle.
It’s also important that deputies clearly articulate specific behaviors that justified continued force such as “pulling away,” attempting to stand,” “reaching for waistband,” and “kicking deputies.” Avoid vague language such as “non-compliant” without explaining the actual threat behavior. Body-worn cameras can be a great tool for professionally narrating/documenting changing resistance levels.
Remember, the best legal defense is not simply winning the physical confrontation, it is demonstrating disciplined, reasonable decision-making throughout the entire encounter.
Stay professional. Stay accountable. Protect the badge.
