FHWorld16: Liability Related to Use of Force on the Incident Scene

Members of the fire service are unfortunately finding themselves in situations in which they need to contemplate their options related to applying force to protect themselves from potentially dangerous patients. In his Thursday afternoon session “Use of Force: Liability of Defending Yourself on Duty,” Battalion Chief Brian Giles of the Lincoln, NE, Fire Department reviewed legal considerations and offered examples of the appropriate amounts of force to use in varying situations.

Giles opened the session with a “full disclosure” that he was a cop for 11 years before moving over to the fire department. Having been a firefighter for the previous 15 years, he is unnerved at the lack of formal fire department policies on this topic and wants to encourage fire service personnel to be more aware of potentially dangerous situations. It’s understandable to a degree, Giles said, because police are trained from day 1 that people are dangerous, while firefighters tend to feel like their customers love them. As such, fire personnel are naturally less likely to feel that they always need to scan a room for potential weapons—but they should, he said.

Giles underscored to attendees that he is not a lawyer, and it’s important for fire personnel to follow their department’s SOPs on the topic—if they exist.

Dangerous situations

When it comes to a situation like an active shooter incident, the potential for danger is evident to all. The standard for fire department personnel is to “stage” and wait for law enforcement to clear the scene, he said. “If you don’t do that, you’re asking for trouble,” he added. There are also situations in which fire crews are called to help with a suicidal individual. Giles shared a tip he learned in SWAT training: “If someone is suicidal, they are homicidal.”

But what about those incidents where there is no compelling information from dispatch to indicate the possibility of a threat?

Giles recounted an incident in North Platte, NE, where two paramedics responded to what they thought would be a routine call but soon found themselves being held hostage by a man with a knife. Giles shared that in a moment like that, the paramedics would naturally start experiencing adrenaline-based stress and get caught in a feedback loop. This is where training is critical, as we instinctively call on our “slide tray of past experiences” in order to manage the situation, he said.

Giles pointed out that firefighters are great at taking a mental snapshot of a fire scene when they arrive, but asked why they don’t do the same for other types of calls. This could be a simple scan of a room, looking for something like a pair of scissors on the table, which can be removed or isolated from the patient to eliminate a potential threat. “Keep your eyes open,” he said. “I don’t need to be overly cautious, but I don’t like to see people get hurt when it could have been avoided.”

Legal parameters

The key to liability related to use of force is the 4^th Amendment of the Constitution related to excessive force, which applies to civilians—and firefighters are civilians, Giles reminded. “If you use too much force, you’re looking at a suspension, getting fired or being charged with assault,” he said. Additionally, he reminded attendees that we live in an age where cameras are everywhere, and it’s reasonable to assume your actions are always being recorded.

The Supreme Court case Graham v. Connor (1989) sets the standard for guidelines as to what is “objectively reasonable” with regard to use of force, Giles said. In short, the use of force must be reasonably balanced against the severity of the crime, the threat level and the level of resistance. Giles then used Nebraska’s statute on the issue (28-1409) as the backdrop for detailing use of force parameters, noting that the use of force is justifiable when the person believes that it is immediately necessary to protect him or herself against the use of unlawful force by another person on the present occasion. Further, force is necessary to protect oneself against death or serious bodily harm.

Giles explained the “Use of Force Model,” which is divided into two parts: 1) Levels of resistance (what the “bad guys” can do to you) and 2) Level of control (what you do to control their resistance).

There are six levels of resistance:

Psychological intimidation—the 1,000-yard stare, for example
Verbal noncompliance—verbally refusing to follow an order
Passive resistance—sitting on hands, being “dead weight”
Defensive resistance—pulling or pushing away but not actively trying to assault you
Active aggression—punching or kicking, for example
Deadly force assault—actions that will cause serious bodily harm or death

The following levels of control can be used in response:

Your presence—the mere presence of an official can bring some people under control
Verbal commands—Most will easily follow directions
Empty hand controls—a “soft” hand control is using the pressure points or a joint lock to gain compliance (little to no injury potential); a “hard” hand control is a strike or stun (some injury potential)
Intermediate weapons—this includes OC, pepper spray, baton, emergency improvised device (radio, flashlight, etc.)
Deadly/lethal force—because fire/EMS crews don’t carry firearms, this could be scissors or even a pencil

Related to the emergency improvised devices from #4, Giles explained that it’s important to remember that such items (radio, flashlight) are not designed to hit people and can therefore cause serious bodily hard. However, “If it’s all I got, it’s all I got,” he said. He described a situation from 1990 when some police officers were outnumbered and attacked by a group of people who were shooting at the police. One officer was pinned down and being choked. He was able to reach his radio and smash it over the assailant’s head—a justifiable action in the situation.

When it comes to using deadly force, the only times when it is permissible, Giles said, is if there is reason to believe there is imminent danger of death or great bodily harm to yourself or someone else, or if you are being threatened with a deadly weapon.

Giles used the 1 + 1 Theory to explain how you can know how much force to apply. The theory basically says that if an aggressor is using active aggression, for example, you can meet his punches and kicks and go one step further in order to make him stop. You can even skip the equal level (punches and kicks) and go straight to the higher step if necessary. “But if I’m going to meet his aggression with deadly force, there must be a weapon present,” he noted.

There are several variables that must also be taken into consideration for use of force, Giles said.

Size of assailant vs. your size
Number of assailants
Weapons (
Ethos/drugs
Injury or exhaustion to you

In the end, he said, judgment about a use of force will come down to the “totality of circumstances,” which includes, but is not limited to, the resistance of the assailant and the tense, uncertain, rapidly evolving nature of the situation.” He reminded everyone to remember the Graham v. Connor judgment stating that the use of force on a person “shall be objectively reasonable based on the totality of circumstances known or perceived at the time the force was used.”