During your law enforcement career, you will undoubtedly be involved in situations that require you to use some type of force. These situations and the type of force will vary. You should understand this possibility and be prepared to deal with the situation when it presents itself. Along with the likelihood that you will have to use force, there is a risk that you will be sued for what a defendant claims is excessive force. The validity of the arrest does not prevent a suspect from claiming an officer used too much force during the arrest. Lack of a significant injury, by itself, does not defeat an excessive force claim.

(a) Ten Truths to Follow in Use of Force

(1) There is no legal duty to retreat before using force.

(2) The use of force is not inherently suspect or unlawful.

(3) The use of deadly force is not limited to any particular list of tactics and/or weapons to the exclusion of others.

(4) Roadblocks and ramming are a use of force, possibly even deadly force.

(5) No court has ever banned outright any specific technique, tactic or weapon.

(6) What an officer learns about a suspect or situation after force is used may never be used to justify the force.

(7) An officer need not see a weapon first before using force.

(8) An officer need not be attacked first before using force.

(9) The force used does not have to be the best alternative for resolving the situation, only a reasonable one.

(10) Prior uses of force by an officer do not necessarily make his or her subsequent uses of force improper.

(b) Other Rules to Follow

(1) Force is justified only to effect arrest, prevent escape, defend yourself or another officer or to protect a civilian.

(2) Reasonable force is the only lawful force

(3) Rule of Necessity - use force only when innocent person's safety (including your own) is at risk

(A) Do not place the safety of innocent people at risk

(B) Consider the totality of the situation

(4) Use only that degree or amount of force needed to resolve the situation. When force is no longer necessary, stop using it.

(5) Never use force as retribution or punishment.

2. LEGAL STANDARDS

(a) FOURTH AMENDMENT

All uses of force are considered "seizures" and are analyzed by courts under the Fourth Amendment to the United States Constitution. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Although the Fourth Amendment technically limits the power of the federal government, it is applied against state actors through the due process clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)

An individual is 'seized' when an officer restrains his freedom, even if the detention is brief and falls short of arrest. The Fourth and Fourteenth Amendments prohibit unreasonable seizures as well as searches. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 (1985).

State v. Schmitter, 23 Kan.App.2d 547, 550, 933 P.2d 762 (1997).

(b) STATE CONSTITUTION

Section 15 of the Kansas Constitution Bill of Rights provides:

The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized."

Although there is a very slight wording difference between § 15 and the Fourth Amendment, they mean the same thing.

Section 15 of the Kansas Constitution Bill of Rights provides protection identical to that provided under the Fourth Amendment to the United States Constitution. See State v. Johnson, 253 Kan. 356, 362, 856 P.2d 134 (1993) ("[T]he wording and scope of the two sections are identical for all practical purposes. If conduct is prohibited by one it is prohibited by the other."); State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993).

State v. Ninci, 262 Kan. 21, 29-30, 936 P.2d 1364 (1997).

(1) Definition of deadly force. Force reasonably likely to cause death or serious bodily harm.

Deadly force is "force that the actor uses with the purpose of causing or that he knows to create a substantial risk of causing death or serous bodily harm. Purposely firing a firearm in the direction of another person . . . constitutes deadly force." Ryder v. City of Topeka, 814 F.3d 1412, 1416 n.11 (10^th Cir. 1987)(approving Model Penal Code definition).

"We hold that deadly force under Tennessee v. Garner, 471 U.S. 1 (1985) means force reasonably likely to kill." Vera Cruz v. City of Escondido, 139 F.3d 659 (9^th Cir. 1998). See also Ryder v. City of Topeka, 814 F.2d 1412, 1416 n.11 (10th Cir. 1987)(shooting is deadly force). Ninth Circuit later redefined definition to say deadly force includes force that creates a substantial risk of death "or results in serious bodily injury" Smith v. City of Hemet, 394 F.3d 689, 704-07 (9^th Cir. 2005)(en banc).

(A). Very likely includes ramming vehicle of a fleeing misdemeanant, which a panel of the 11^th Circuit declared unconstitutional in Adams v. St. Lucie Co. Sheriff's Dept., 962 F.2d 1563 (11^th Cir. 1992), but the full court, hearing case en banc reversed based on newness of Garner rule (apparently the Circuit decision before Supreme Court ruled), and held the law was not "clearly established" at time of ramming. 998 F. 2d 923 (11^th Cir. 1993). Still good law? See section 2(g) below.

(2) Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)(Officer shot a 15 year old fleeing burglary suspect in the back of the head in accordance with Tennessee law).

(A) Unconstitutional to use deadly force to effect arrests of nonviolent felony suspects

(B) Deadly force may be used:

(I) When necessary to prevent escape; and

(ii)) Officer has probable cause to believe the suspect possesses a significant threat of death or serious physical injury to the officer or others. Garner, 471 U.S. at 11.

(3) When justified. Deadly force in self defense is not constitutionally unreasonable if there is a threat of serious physical harm to the officer or others. Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699 (10^th Cir. 1995), Romero v. Bd. of County Comm'rs, 60 F3d 792, 793-94 (10^th Cir. 1995)(shooting suspect coming at officer armed with a knife), Wilson v. Meeks, 52 F.3d 1547, 1554 (10^th Cir. 1995) abrogated on other grounds, Saucier, 533 U.S. at 205)(shooting suspect who was pointing a gun in officer's direction).

(d) NON-DEADLY FORCE

Using force likely to cause "serious bodily injury" does not equate to force "reasonably likely to cause death." Vera Cruz, 139 F.3d 659 (9^th Cir. 1998). Generally judged by same standards as deadly force. Thus officer who released canine to stop a fleeing suspect did not use force "reasonably likely to cause death," and the force used was not excessive. Cf. Robinette v. Barnes, 854 F.2d 909 (1988)(canine bit suspect's neck causing suspect to bleed to death; not deadly force because outcome was "extreme aberration.")

Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125, 1131 (9^th Cir. 2002). Officers violated the Fourth Amendment by using Capstun against non-violent, peaceful protesters who refused to voluntary leave and placed themselves in self-restraint devices after being advised they were trespassing.

(e) STANDARDS FOR JUDGING SEIZURES UNDER THE FOURTH AMENDMENT

Graham v. Connor, 490 U.S. 386, 104 L.Ed.2d 443, 109 S.Ct. 1865 (1989). “[A]ll claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard. 490 U.S. at 395. Factors:

(1) Scope of the intrusion (degree and extent of force used).

(2) Manner of intrusion (type of force used).

(3) Place where intrusion occurred (where force was used).

(4) Need to perform official duties (task officer was performing when force was used).

(5) Justification for intrusion (why force was used, weighed against governmental interest at stake).

(6) Severity of the crime involved.

(7) Whether suspect was immediate threat to officers or others.

(8) Whether suspect actively resisted.

(9) Whether suspect tried to evade arrest by fleeing.

(10) Other facts and circumstances relevant to the situation and the force decision (totality of the circumstances).

(f) DEFERENTIAL, OBJECTIVE STANDARD

(1) “‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ . . . violates the Fourth Amendment.” Graham, 490 U.S. at 396.

(2) Legal standard gives some deference to LEO's due to situation. An objective standard applies, and the issue is whether your action is "objectively reasonable." The issue is analyzed from the perspective of an objectively reasonable officer at the scene with due allowance for the fact that LEO's "are often forced to make split second judgments -- in circumstances that are tense, uncertain, and rapidly evolving. Graham, 490 U.S. at 397.

(3) The law does not require infallible judgment by LEOs. "He is not required to know with certainty that his life or another life is threatened in order to justify use of deadly force." Force must be reasonable under the circumstances. Lewis v. Marmon, 8 Kan. App. 2d 277, 280, 655 P.2d 953 (1982).

(A) Officer's own reckless or deliberate conduct during a seizure unreasonably create the need to use force?

Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699 (10^th Cir. 1995). Lawrence officers shot and killed 22-year old Gregory Sevier. Drunk, possibly suicidal Gregory was armed with a butcher knife locked himself in his room and played his stereo very loudly. Concerned drunk parents called 911 at about 2:30 a.m. Officers respond. First officer asks for clear radio channel and opens door. Gregory eventually comes to door with knife in his hand and refused to drop it. Gregory said “I love you, Mom. I love you, Mom," then, depending on who you believe, lunged at officer with the knife in a raised and striking position. Officers fired 6 shots. Two were instantly fatal. Five minutes elapsed from time of arrival. “The reasonableness of Defendants' actions depends both on whether the officers were in danger at the precise moment that they used force and on whether Defendants' own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.” (Footnote omitted). District court’s refusal to grant officer’s immunity cannot be collaterally appealed. 60 F.3d at 702.

(B). Reasonable mistake defense

1. Reasonable officer would have believed such force was justified at the time.

2. Only unreasonable mistakes give rise to liability under 42 U.S.C. § 1983.

Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Excessive force analysis is distinct from qualified immunity analysis. A finding of unreasonable force does not necessarily preclude an officer from being entitled to qualified immunity.

Childress v. Oklahoma, 1 P.3d 1006, 1014 (Ok.Crim.App 2000). Absent evidence that law enforcement officers intended to harm innocent hostages when trying to recapture escaped convicts, officers did not violate hostages Fourth Amendment rights.

Medeiros v. O'Connell, 150 F.3d 164 (2d Cir. 1998). Troopers entitled to immunity for accidental shooting of bus passenger when trying to apprehend hostage taker on the bus. Court stated: "The heroic and selfless conduct of the troopers in this case is the very opposite of conduct that could be said to shock the conscience. As counsel for Medeiros conceded at oral argument, another person in her place might be moved to thank the people who risked their lives to save her son from an armed madman - rather than sue them for money damages."

Lovelace v. Anderson, WL 351150 (Md.App. 1999). Off-duty police officer working security at a hotel was entitled to qualified immunity when he intervened in an armed robbery and became involved in a gun battle with the robbers. One of his shots struck a hotel guest. When he intervened, he reverted to police officer status and there was no evidence he acted with malice.

(g) HIGH SPEED PURSUITS

County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Officer pursued two youths on a motorcycle at high speeds. After 75 second chase covering 1.3 miles, 16-year old fell off motorcycle and run over by officer's car. Federal district court dismissed, but 9^th Circuit reversed, holding that jurors should decide whether officer showed "a reckless disregard” for the lives and safety of the youths when deciding to give chase. The United States Supreme Court unanimously held that a police officer does not violate substantive due process rights of an individual by causing his death through deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender. Protection against government arbitrariness is the core of due process, but only the most egregious executive actions can be "arbitrary" in the constitutional sense. The standard of conduct that "shocks the conscience" is a more appropriate standard, but this standard must be applied with full cognizance of the facts at issue. Since the officer in this case had no intent to harm the suspect, in the chase, the officer's conduct does not rise to a level which "shocks the conscience."

Trigalet v. City of Tulsa, 239 F.3d 1150 (10^th Cir. 2001). A municipality cannot be held liable for an injury caused by its police officer, even if the City's actions can be characterized as arbitrary, or conscience-shocking, if there are no unconstitutional acts by an individual officer. Fleeing suspect in a stolen van ran a red light and killed three people. Applying County of Sacramento v. Lewis, 523 U.S. 833 (1998), court found no reckless disregard by the officer, or intent to cause the decedents harm, when continuing the pursuit. Even if policies, training and supervision were unconstitutional, no liability attaches to the city if the officer did not commit a constitutional violation.

(h) USE OF FORCE MATRIX AND POLICY

Outside handouts.

(I) SCENARIOS

Allen v. Muskogee, Okl., 119 F.3d 837, 840, (10^th Cir. 1998): 10-97. Male suspect leaves house armed with several guns and ammo. Teletype advises of situation, of outstanding warrant, and that suspect threatened family members. 911 call - suspect at Sister’s threatening suicide. Cops arrive and find bystanders near car and Allen in driver's seat with one foot out of the vehicle. He had a gun in his right hand, which was resting on the console between the seats. Rather than take cover, get bystanders out of the way and attempt to communicate with suspect, cops storm car and try to take gun away. Shots are fired and cops hit suspect four times. Entire incident lasts about 90 seconds. Although court applies a deferential standard, based on expert testimony that officers either deviated from training or training was woefully inadequate, reversed summary judgment for officers and city, holding that excessive force and failure to train did not warrant summary judgment.

We analyze a § 1983 claim of excessive force by determining whether the officers' actions were objectively reasonable in light of the surrounding facts and circumstances. Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989); Thompson v. City of Lawrence, Kan., 58 F.3d 1511, 1516 (10th Cir.1995).

. . .

The excessive force inquiry includes not only the officers' actions at the moment that the threat was presented, but also may include their actions in the moments leading up to the suspect's threat of force. Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699 (10th Cir.1995). Of course, the use of force must be judged from the perspective of a reasonable officer "on the scene," who is "often forced to make split-second judgments ... about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97, 109 S.Ct. at 1871-72. However, as we stated in Sevier: "[t]he reasonableness of Defendants' actions depends both on whether the officers were in danger at the precise moment that they used force and on whether Defendants' own reckless or deliberate conduct during the seizure unreasonably created the need to use such force." 60 F.3d at 699. We will thus consider an officer's conduct prior to the suspect's threat of force if the conduct is "immediately connected" to the suspect's threat of force. Romero v. Board of County Comm'rs, 60 F.3d 702, 705 n. 5 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 776, 133 L.Ed.2d 728 (1996); Bella v. Chamberlain, 24 F.3d 1251, 1256 n. 7 (10th Cir.1994), cert. denied, 513 U.S. 1109, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995); see also Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 1699-700, 85 L.Ed.2d 1 (1985) (objective reasonableness inquiry requires courts to examine "whether the totality of the circumstances justified a particular sort of search or seizure").

Allen, 119 F.3d at 840.

Thompson v. City of Lawrence, Kan., 58 F.3d 1511 (10^th Cir. 1995). Lawrence officers used wired informant to deliver “stolen” mower to bail bondsman. Entered shop with guns drawn and ordered bondsman and third party on floor and handcuffed them behind their backs. Both sued for excessive force. Bondsman claimed officers "yank[ed]" his wrists in order to raise him to his feet despite his protestations of an injured shoulder. Court found right to arrest carries with it the right to use some physical coercion to effect the arrest. Not unreasonable for the officers to carry weapons when they entered the premises of bondsman, a suspected felon with a reputation for possessing firearms. Not unreasonable for officers to take control of a potentially dangerous situation by ordering people on the floor and handcuffing them. Officer’s actions reasonable under totality of the circumstances. 58 F.3d at 1516

(4) To win in court, you and your attorney must convince a judge or jury:

(1) Your actions were reasonable;

(2) You acted fairly, under the circumstances;

(3) Your response was rational, considering what you faced;

(4) The force you used was necessary; and

(5) Choice to use force and type of force used was proper choice among alternatives.

3. K.S.A. 21-3215 LEO'S USE OF FORCE IN MAKING AN ARREST

(1) A law enforcement officer, or any person whom such officer has summoned or directed to assist in making a lawful arrest, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. Such officer is justified in the use of any force which such officer reasonably believes to be necessary to effect the arrest and of any force which such officer reasonably believes to be necessary to defend the officer’s self or another from bodily harm while making the arrest. However, such officer is justified in using force likely to cause death or great bodily harm only when such officer reasonably believes that such force is necessary to prevent death or great bodily harm to such officer or another person, or when such officer reasonably believes that such force is necessary to prevent the arrest from being defeated by resistance or escape and such officer has probable cause to believe that the person to be arrested has committed or attempted to commit a felony involving great bodily harm or is attempting to escape by use of a deadly weapon, or otherwise indicates that such person will endanger human life or inflict great bodily harm unless arrested without delay.

(2) A law enforcement officer making an arrest pursuant to an invalid warrant is justified in the use of any force which such officer would be justified in using if the warrant were valid, unless such officer knows that the warrant is invalid.

The purpose of K.S.A. 21-3215(1) is to set limits for LEO's and if limits are observed, officer has a defense in a criminal action. The civil liability of a LEO is coextensive with criminal liability. Dauffenbach v. City of Wichita, 233 Kan. 1028, 667 P.2d 380 (1983).

Martinez v. City of Albuquerque, 184 F.3d 1123 (10^th Cir. 1999). Plaintiff, Martinez, was caught patronizing a prostitute while in his car. Martines attempted to flee when officers approached. A brief chase ensued. A few seconds later, Martinez stopped his vehicle, locked the doors, and rolled down the window. With his hands gripping the steering wheel, Martinez claimed he had done nothing wrong. When Martinez refused to exit his vehicle, one of the arresting officers reached in the window to unlock the door. Martinez rolled up the window on the officer's arm. Another officer struck Martinez in the face, unlocked the vehicle and arrested Martinez. The entire incident lasted only two to three minutes. The District court dismissed Martinez's excessive force claim without prejudice pending outcome of plaintiff's state appeal on criminal charges (resisting arrest). The Tenth circuit reversed holding that a judgement in plaintiff's favor in the civil action would not necessarily imply the invalidity of conviction for resisting arrest. "The state district court properly noted that whether Martinez resisted arrest by initially fleeing the scene is a question separate and distinct from whether the police officers exercised excessive or unreasonable force in effectuating his arrest. A finding that the police officers utilized excessive force to arrest Martinez would in no manner demonstrate the invalidity of Martinez' state court conviction for resisting arrest under these circumstances." 184 F.3d at 1126.

Melendez v. Los Angeles, Calif., 63 Cal. App. 4^th 1, 73 Cal.Rptr.2d 469 (19__), cert. denied ___ U.S. ___ (67 U.S.L.W. 3331 11/17/98). Off duty police officers moonlighting for ticket sales who engaged in acts of excessive force were not functioning as peace officers where they failed to comply with relevant statutes and obtain relevant approvals from city council. City not liable under 42 U.S.C. § 1983.

Barnes v. Gorman, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ ( No. 01-682, filed 6/17/02). Punitive damages are not available in private suits brought under section 202 of the Americans With Disabilities Act, which prohibits discrimination against the disabled by public entities, and section 504 of the Rehabilitation Act. Case involves a paraplegic who sued the Kansas City Police Board for injuries sustained during an arrest by an off-duty officer. Verdict in this case was approximately $1.2 million punitive damages& $1 million in actual damages.

(a) Suspect has no right to resist arrest.

21-3217. Use of force in resisting arrest.

A person is not authorized to use force to resist an arrest which he knows is being made either by a law enforcement officer or by a private person summoned and directed by a law enforcement officer to make the arrest, even if the person arrested believes that the arrest is unlawful.

(b) Only if an officer uses excessive force does a person have the right to self-defense. State v. Franz, 9 Kan.App.2d 319, 320, 676 P.2d 157 (1984); State v. Heiskell, 8 Kan.App.2d 667, 672, 666 P.2d 207 (1983).

21-3218. No Duty to Retreat; exceptions.

(a) A person who is not engaged in an unlawful activity and who is attacked in a place where such person has a right to be has no duty to retreat and has the right to stand such person's ground and meet force with force.

(b) This section shall be part of and supplemental to the Kansas criminal code.

History: L. 2006, ch. 194, § 1; May 25.

21-3219. Use of force; immunity from prosecution or liability; investigation.

(a) A person who uses force which, subject to the provisions of K.S.A. 21-3214, and amendments thereto, is justified pursuant to K.S.A. 21-3211, 21-3212 or 21-3213, and amendments thereto, is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of such officer's official duties and the officer identified the officer's self in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, "criminal prosecution" includes arrest, detention in custody and charging or prosecution of the defendant.

(b) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (a), but the agency shall not arrest the person for using force unless it determines that there is probable cause for the arrest.

History: L. 2006, ch. 194, § 2; May 25.

4. K.S.A. 22-2508 LEO's USE OF FORCE IN EXECUTING A SEARCH WARRANT

All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to execute a search warrant.

"It is indisputable that the Kirks had a Fourth Amendment right not to be subjected to the use of excessive force by police officers. See, e.g., Tennessee v. Garner, 471 U.S. 1, 7-8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Since police officers may lawfully use some degree of force to fulfill their duties, however, this right was violated only if the force used was "objectively unreasonable." See Graham v. Connor, 490 U.S. 386, 396-99, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Whether the force used in a particular case is objectively reasonable depends on the facts and circumstances of that case, including such factors as "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396.

The use of a flashbang device is neither per se objectively reasonable nor unreasonable. The reasonableness of its use depends on the facts and circumstances of each case." Kirk v. Watkins, 182 F.3d 932 (C.A.10 1999)(applying Oklahoma law)(unpublished). The court held the use of the flashbang was reasonable in this case, but even if it wasn't, the law was no clearly established in 1996. A confidential informant had seen approximately twelve long guns and four hand guns in Kirk's residence. Kirk almost always kept at least one handgun on his person or within reach. He had stated that if police came back into his house again, they would not leave the same way that they entered. Kirk had methamphetamine, scales, several small plastic baggies and several weapons including four handguns in his house. He also had a reputation for violence and he had a previous conviction for assault and battery with a deadly weapon.

22-2509. Detention and search of persons on premises.

In the execution of a search warrant the person executing the same may reasonably detain and search any person in the place at the time:

(a) To protect himself from attack, or

(b) To prevent the disposal or concealment of any things particularly described in the warrant.

22-2510. When search warrant may be executed.

A search warrant may be executed at any time of any day or night.

(a) Alleged excessive force may not be a defense in a criminal action.

In State v. McCloud, 257 Kan. 1, 891 P.2d 324 (Kan. 1995), the court held that a law enforcement officer's alleged use of excessive force (use of a "flashbang" distraction device upon entry) did not warrant application of the exclusionary rule where defendant failed to file a pre-trial motion to suppress the evidence. "We conclude that the exclusionary rule should not apply in this case. We believe that the right to bring a civil action against an officer is usually a sufficient deterrent to an officer's use of unreasonable force. See Dauffenbach v. City of Wichita, 233 Kan. 1028, 667 P.2d 380 (1983) (party has the right to bring a civil action against law enforcement officers who use unreasonable force in making an arrest)."

(b) Civil liability.

(1) Jenkins v. Wood, 81 F. 2d 988 (10^th Cir. 1996), probably defines the outer limits of constitutional warrant service under state law. Concurring in a judgment granting defendant KBI agents and TPD officers summary judgment, Judge Henry stated:

I concur in the majority's legally precise disposition. I write separately only to emphasize the apparent inappropriateness of the governmental action in this case, which seems to push the envelope of "reasonableness" under the Fourth Amendment dangerously far.

The defense of the Kansas Bureau of Investigation and the City of Topeka rests upon the fact that neither Mr. nor Mrs. Jenkins could identify the officer or officers responsible for the egregious conduct that occurred in their home in the middle of the night. The defendants do a good job of pointing the finger at each other, and although this defense is legally successful in this case, it leaves quite a lot to be desired from the standpoint of the Fourth Amendment. Indeed, the district court also expressed its view that the Jenkins "have testified to facts which might support a claim of excessive force against one or more officers executing the search warrant." [Citation omitted]. I agree with the district court's conclusion. The warrant, requested at 10:48 p.m. and executed at 12:30 a.m. [Citation omitted], was served in a fashion that would have almost certainly been illegal under federal statutory law. See 18 U.S.C. § 3109 (requiring federal law enforcement officers to announce their authority and purpose prior to breaking doors or windows in the execution of a search warrant); United States v. Stewart, 867 F.2d 581 (10th Cir. 1989) (applying 18 U.S.C. § 3109 to similar facts).

. . .

The governmental interests served by this commando approach are not apparent.

. . .

These governmental interests do not outweigh Mr. and Mrs. Jenkins' Fourth Amendment right to be free from flash bang, no-knock, 12:30 a.m., governmental searches of their home. Noting that the standard of review requires this court to examine the factual record in the light most favorable to Mr. and Mrs. Jenkins and extend to them all reasonable factual inferences, the threatening language allegedly used by the police -- "You tell me where your son is or I will shoot." -- gives me further pause. [Citation omitted].

. . .

Nevertheless, the majority opinion clearly states the law's requirements. I agree with the district court that Mr. and Mrs. Jenkins have "not identified sufficient evidence or pointed to any authority demonstrating that either Wood or Sabel may be liable for the such [sic] acts." [Citation omitted]. Nor have they provided support for their claim that the City of Topeka had a custom or policy of using excessive force in the execution of search warrants. Courts cannot apportion § 1983 liability on a market share basis.

I believe the defendants would do well to reevaluate their policies (or lack thereof) --whoever makes them and whatever they are -- regarding the use of such tactics in the execution of search warrants. [Citations omitted].

Jenkins, 81 F. 2d at 996-998 (Henry, Circuit Judge, Concurring).

5. K.S.A. 21-3211 USE OF FORCE IN DEFENSE OF A PERSON

(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other's imminent use of unlawful force.

(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.

(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person.

History: L. 1969, ch. 180, § 21-3211; L. 2006, ch. 194, § 3; July 1.

6. K.S.A. 21-3212 USE OF FORCE IN DEFENSE OF DWELLING

(a) A person is justified in the use of force against another when and to the extent that it appears to such person and such person reasonably believes that such force is necessary to prevent or terminate such other's unlawful entry into or attack upon such person's dwelling or occupied vehicle.

(b) A person is justified in the use of deadly force to prevent or terminate unlawful entry into or attack upon any dwelling or occupied vehicle if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or another.

(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person's dwelling or occupied vehicle.

History: L. 1969, ch. 180, § 21-3212; L. 2006, ch. 194, § 4; July 1.

7. K.S.A. 21-3213 USE OF FORCE IN DEFENSE OF PROPERTY OTHER THAN A DWELLING

A person who is lawfully in possession of property other than a dwelling is justified in the threat or use of force against another for the purpose of preventing or terminating an unlawful interference with such property. Only such degree of force or threat thereof as a reasonable man would deem necessary to prevent or terminate the interference may intentionally be used.

8. 21-3214 USE OF FORCE BY AN AGGRESSOR

The justification described in sections 21-3211, 21-3212, and 21-3213 is not available to a person who:

(1) Is attempting to commit, committing, or escaping from the commission of a forcible felony; or

(2) Initially provokes the use of force against himself or another, with intent to use such force as an excuse to inflict bodily harm upon the assailant; or

(3) Otherwise initially provokes the use of force against himself or another, unless:

(a) He has reasonable ground to believe that the is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

9. RESPONDING TO USE OF FORCE INCIDENTS

(a) IMMEDIATE ACTIONS

(1) If you see another officer using excessive force and fail to intervene, you can be held liable for injuries resulting from your failure. Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir.1996). In this case, court affirmed denial of summary judgment to officers where they allegedly pulled a 95-pound woman from her car, beat her and stomped on her because she wouldn’t move her car prior to the arrival of Boris Yeltsin’s motorcade on a Wichita street.

(2) As soon as scene secure, call for medical attention and render first aid. Although not constitutionally required, moral and humanitarian concerns should guide officers. Don’t cloud justified uses of force with bad facts. See Wilson v. Meeks, 52 F.3d 1547 (10^th Cir. 1995)(officers shot suspect, then allegedly cuffed him, failed to roll him on his side to assist breathing, and interfered or failed to cooperate with EMT’s because “they did not want to get blood on them.”)

(3) Remove yourself from the scene as soon as reasonably possible. If necessary, go back to scene before interviews or writing your reports to make sure facts are straight in your mind.

(4) Do not discuss facts with anyone before speaking with Department’s legal advisor, chaplain and/or attorney of your choice. Keep in mind that Signal 13's generate immediate response including several officers with tape recorders and/or car cameras and any statements (except attorney-client; doctor-patient; clergy-penitent) are discoverable and admissible at trial.

(5) Prepare for litigation

(b) DEPARTMENT RESPONSE

(1) Has duty to conduct fair and independent criminal and administrative investigation of facts.

(2) Use of Force Review Board Procedures

(1) Evaluate policy/training needs based on any trends reflected by use of force incidents.

Agency has a constitutional duty to give you training in the constitutional limits on the use of force. Failure to do so subjects the city to liability.

To establish a city's liability under 42 U.S.C. § 1983 for inadequate training of police officers in the use of force, a plaintiff must show (1) the officers exceeded constitutional limitations on the use of force; (2) the use of force arose under circumstances that constitute a usual and recurring situation with which police officers must deal; (3) the inadequate training demonstrates a deliberate indifference on the part of the city toward persons with whom the police officers come into contact, and (4) there is a direct causal link between the constitutional deprivation and the inadequate training.

Allen v. Muskogee, Okla., 119 F.3d 837, 841 (10th Cir.1997), cert. denied, 66 U.S.L.W. 3428, 3434 (1998).

A civil rights plaintiff ordinarily cannot rely on a single incident of unusually excessive force to prove failure to train. See id. at 844. However, the city's liability may arise from a single incident where there is other evidence of inadequate training. See id. at 844-45.

Examples:

Brown v. Gray, 227 F.3d 1278, 1286 (10th Cir. 2000). Off-duty Denver officer in street clothes in his own private vehicle had a traffic dispute with another motorist. Officer approached other vehicle, identified himself as an officer (although he did not show badge or ID), and pointed his gun at the motorist. Motorist drove off and officer pursued him. After another stop and verbal exchange, motorist drove off again. Officer fired several shots into the car and hit the motorist about 3 times, badly injuring him. Officer claimed motorist brandished a weapon at him, thus he attempted arrest. He claimed motorist appeared to be reaching for a weapon and attempting to flee. Denver has an "always armed/always on duty" policy. Motorist sued officer & Denver alleging various state and federal claims, including a civil rights claim against Denver for failure to train. Motorist alleged training program made no distinction between off-duty and on-duty scenarios, despite the disadvantages an officer has while off-duty (no patrol car, uniform, radios, handcuffs, etc). Officer cross-claimed against Denver for indemnification and defense costs. Motorist and officer settled prior to trial for $150,000. Officer assigned motorist cross-claim for defense costs against Denver. Jury found motorist proved failure to train claim, but found officer was not acting within the scope of his employment. Judgement for motorist for $400,000. On appeal, 10th Circuit held there was more than sufficient evidence for jury to determine training program was inadequate, this was a usual and recurring situation, the failure to train constituted deliberate indifference, and that the failure to train was the cause of the motorists injuries. Also, the district court erred in denying the motorist judgment for approximately $123,300 in defense costs the officer assigned to him. Case was remanded for further consideration and attorney fees.

Training officers to place their knees on an arrestee's neck shows deliberate indifference to public safety. Paul v. City of Altus, 141 F.3d 1185, (C.A.10 (Okla.) 1998)(unpublished).

Crownover v. City of Lindsay, Oklahoma, 229 F.3d 1162, 2000 WL 1234852 (10th Cir. unpublished, Sept. 1, 2000). City is not liable for civil rights violation arising from a sexual assault committed by a police lieutenant who went to the woman's home a few hours after arresting her husband on drug charges. Plaintiffs must show the officer was acting pursuant to a city policy or custom, and here there was no such evidence. Summary judgment for defendant affirmed.

Rev. A. 02/20/98 Rev. B 10/9/98 Rev. C 01282000 Rev. D 20001024 Rev. E 20011101 Rev. F 20021016. Rev. G 20041221; Rev. H 20061106