Legal Issues and Case Law

Crisis Intervention Team — Legal
Issues and Case Law
Jeff Furbee
Assistant City Attorney
Chief Police Legal Advisor
Zach Klein
Columbus City Attorney
Police Legal Advisor
120 Marconi Blvd., Columbus, Ohio 43215
614-645-4530 Fax 645-4551 www.ColumbusCityAttorney.org

Most Relevant Ohio Revised Code
Sections

R.C. § 5122.01 Definitions
(A) “Mental illness” means a substantial disorder
of thought, mood, perception, orientation, or
memory that grossly impairs judgment, behavior,
capacity to recognize reality, or ability to meet the
ordinary demands of life.

R.C. § 5122.01 Definitions
 “(B) “Mentally ill person subject to court order” means a mentally ill
person who, because of the person’s illness:
 (1) Represents a substantial risk of physical harm to self as
manifested by evidence of threats of, or attempts at, suicide or
serious self-inflicted bodily harm;
 (2) Represents a substantial risk of physical harm to others as
manifested by evidence of recent homicidal or other violent
behavior, evidence of recent threats that place another in
reasonable fear of violent behavior and serious physical harm, or
other evidence of present dangerousness;

R.C. § 5122.01 Definitions (cont.)
 “(B) “Mentally ill person subject to court order” means a mentally ill person
who, because of the person’s illness:
 (3) Represents a substantial and immediate risk of serious physical
impairment or injury to self as manifested by evidence that the person is
unable to provide for and is not providing for the person’s basic physical
needs because of the person’s mental illness and that appropriate provision
for those needs cannot be made immediately available in the community;
 (4) Would benefit from treatment for the person’s mental illness and is in
need of such treatment as manifested by evidence of behavior that creates a
grave and imminent risk to substantial rights of others or the person;

 “(B) “Mentally ill person subject to court order” means a mentally
ill person who, because of the person’s illness:
 (5) (a) Would benefit from treatment as manifested by evidence
of behavior that indicates all of the following:
 (i) The person is unlikely to survive safely in the community
without supervision, based on a clinical determination.
 (ii) The person has a history of lack of compliance with
treatment for mental illness and one of the following applies…

 (iii) The person, as a result of the person’s mental illness, is
unlikely to voluntarily participate in necessary treatment.
 (iv) In view of the person’s treatment history and current
behavior, the person is in need of treatment in order to prevent a
relapse or deterioration that would be likely to result in
substantial risk of serious harm to the person or others.
(b) An individual who meets only the criteria described in division
(B)(5)(a) of this section is not subject to hospitalization.

R.C. § 5122.10 Emergency hospitalization
 (A) (1) Any of the following who has reason to believe that a person is a mentally ill person subject to
court order and represents a substantial risk of physical harm to self or others if allowed to remain at
liberty pending examination may take the person into custody and may immediately transport the
person to a hospital,,, where the person may be held for the period prescribed in this section:
 (a) A psychiatrist;
 (b) A licensed physician;
 (c) A licensed clinical psychologist;
 (d) A clinical nurse specialist who is certified as a psychiatric-mental health CNS by the American
nurses credentialing center;
 (e) A certified nurse practitioner who is certified as a psychiatric-mental health NP by the American
nurses credentialing center;
 (f) A health officer;
 (g) A parole officer;
 (h) A police officer;
 (i) A sheriff.

R.C. § 5122.10 (cont.)
 (B) A written statement shall be given to the hospital… The statement
shall specify the circumstances under which such person was taken into
custody and the reasons for the belief that the person is a mentally ill
person subject to court order and represents a substantial risk of physical
harm to self or others... This statement shall be made available to the
respondent…
 (C) Every reasonable,,, effort shall be made to take persons into custody in
the least conspicuous manner possible. A person taking the respondent
into custody pursuant to this section shall explain to the respondent: the
name and professional designation/affiliation of the person taking the
respondent into custody; that the custody-taking is not a criminal arrest;
and that the person is being taken for examination… at a specified
mental health facility identified by name.

R.C. § 5122.10 (cont.)
 (E) A person transported or transferred to a hospital or community mental
health services provider under this section shall be examined by the staff
of the hospital or services provider within twenty-four hours after arrival
at the hospital or services provider... After the examination, if the chief
clinical officer of the hospital or services provider believes that the person is
not a mentally ill person subject to court order, the chief clinical officer shall
release,, the person immediately unless a court has issued a temporary
order of detention applicable to the person under section 5122.11… After the
examination, if the chief clinical officer believes that the person is a mentally
ill person subject to court order, the chief clinical officer may detain the
person for not more than three court days following the day of the
examination and during such period admit the person as a voluntary patient
under section 5122.02 of the Revised Code or file an affidavit under section
5122.11 of the Revised Code…

R.C. § 5122.11 Judicial hospitalization;
temporary detention order.
 Proceedings for a mentally ill person subject to court order
pursuant to sections 5122.11 to 5122.15 of the Revised Code
shall be commenced by the filing of an affidavit in the manner
prescribed by the department of mental health and addiction
services and in a form prescribed in section 5122.111 of the
Revised Code, by any person or persons with the probate court,
either on reliable information or actual knowledge, whichever is
determined to be proper by the court. This section does not
apply to the hospitalization of a person pursuant to section
2945.39, 2945.40, 2945.401, or 2945.402 of the Revised Code.

Case Law: Making/Explaining the
Decision to Seize

In re Miller, 63 Ohio St. 3d 99 (1992)
 It is indisputable that involuntary commitment to a mental
hospital after a finding of probable dangerousness to self or
others can engender adverse social consequences to the
individual.

Ohio Rev. Code Ann. § 5122 sets forth specific
procedures to be followed when a person is
committed to a mental hospital, whether voluntarily
or involuntarily. When commitment is against a
person's will, it is particularly important that the
statutory scheme be followed, so that a patient's
due-process rights receive adequate protection

 An affidavit filed pursuant to Ohio Rev. Code Ann. § 5122.10 must
conform to the requirements of Ohio Rev. Code Ann. § 5122.11.
 If the affidavit is not sufficient to indicate probable cause to order a
person's detention, the court's jurisdiction is never invoked
 The written statement is a requirement for the initiation of an
emergency involuntary commitment.

 Ohio Rev. Code also requires that the affidavit contain a
statement of alleged facts sufficient to indicate probable
cause to believe that the person is a mentally ill person
subject to hospitalization by court order.

 An affidavit of mental illness pursuant to Ohio Rev. Code
Ann. § 5122.11 must set forth facts which describe specific
actions, incidents or events. The facts provide evidence that
a person has engaged in conduct which forms the basis for a
finding of probable cause that he or she may be mentally ill
and in need of court-ordered hospitalization.

 Affidavit in this Case:
Mr. Kenneth Miller is a 38 year old Caucasian, married male,
admitted on an emergency basis on November 18, 1989. The
patient has been progressively confused, delusional, and
paranoid. His sense of reality is altered, grandiouse [sic] and at
times, out of touch with reality."

 The patient contended that his due process rights were violated in
the course of his involuntary commitment. The court agreed.
 The court found that the patient was not afforded due process
because: (1) the police officer who transported the patient to a
hospital gave no written statement of the patient's condition to
ensure at least a minimal level of probable cause; (2) the patient
was not informed of his various rights at the commencement of his
commitment; and (3) the affidavit offered to the court by the patient's
treating psychiatrist was conclusory and thus deficient

Fisher v. Harden, 398 F.3d 837 (6th Cir. 2005)
 Absent suspected criminal activity, in the Sixth Circuit, a
law enforcement official may not physically restrain an
individual merely to assess his mental health.
 Rather, in the context of a mental health seizure, an officer
must have probable cause to believe that the person seized
poses a danger to himself or others.

 A showing of probable cause in the mental health seizure
context requires only a probability or substantial chance of
dangerous behavior, not an actual showing of such behavior.
 Just as actual innocence will not render invalid an arrest that is
properly based upon probable cause that criminal activity was
occurring, a mental health seizure can rest upon probable cause
even when the person seized does not actually suffer from a
dangerous mental condition.
 The standard allows for reasonable mistakes.

 Fisher, a 77-year-old man, was shooting groundhogs in rural farming area in
Morrow County—a place where hunting is common. He was sitting near
railroad tracks in a folding chair. A passerby mistakenly reported that he was
tied to the tracks and might be suicidal. Officers went to location, and upon
seeing man, and seeing he had a rifle, ordered him to put down gun and
come him to road at gunpoint. It was obvious he was not tied to the tracks.
He was compliant with orders once he heard them – he put down rifle and
walked 250 yards to road without incident.
 Upon arrival at road, the officers did not question him (???) but instead
ordered him to the ground, and handcuffed him. He went into cardiac arrest.
Officers admitted that after they initially saw Fisher, and he put down his
gun, he did nothing to make them fear for their safety and nothing to indicate
he had a mental illness.

 The court concluded that the arresting officers engaged in
conduct that violated a clearly established right against a
mental health seizure without probable cause.
 The court held that he alleged facts sufficient to establish a
violation his 4th/14th Amendment rights because they had no PC
to believe he was a danger to himself or others when he
immediately revealed that was not tied to the tracks as had been
reported; complied with orders; did not carry his rifle in a ready
position; and did nothing to make them afraid.

 Although an officer may have reasonable suspicion to detain a person
or his possessions for investigation, the officer's investigative detention
can mature into an arrest or seizure if it occurs over an unreasonable
period of time or under unreasonable circumstances.
 An investigative Terry stop may ripen into a de facto arrest through the
passage of time or the use of force. If, through the passage of time or
use of force, an investigative detention ripens into an arrest, a suspect's
continued detention must be based upon probable cause.
 The investigative methods employed should be the least intrusive
means reasonably available. Was that the case here?

 Court: We have not found any case in which this court has
stated that officers may restrain an individual's liberty on the
sole basis that they have a reasonable suspicion that the
individual suffers from a mental illness.
 No PC for mental health seizure by time Fisher arrived at road
and no reasonable suspicion of criminal activity =
unreasonable seizure
 Ask Yourself: Why were officers in a hurry when Fisher got to
road? Why no questions? Why did officers escalate? What did
they have?

Zucker v. City of Farmington Hills, 643 Fed.
Appx. 555 (6th Cir. 3/14/16)
 In this context, a showing of PC requires only a probability or substantial
chance of dangerous behavior, not an actual showing of such behavior. PC
is a fluid concept, turning on the assessment of probabilities in particular
factual contexts, requiring courts to evaluate the facts known to officers from
the perspective of a reasonable/objective person in those officers' position.
 The constitutionality of a mental-health seizure does not depend on whether
the officer met each requirement spelled out by state law.
 The court's task is to see whether officers had probable cause to believe that
the plaintiff needed immediate hospitalization because she was a danger to
herself or others.

Zucker v. City of Farmington Hills, 643
Fed. Appx. 555 (6th Cir. 3/14/16)
Because the evidence showed that the officers had
reliable evidence that plaintiff, who was bi-polar,
had a weapon while in a delusional state, the
officers had probable cause to temporarily detain,
search, and seize plaintiff.
Daughter told dispatch she was afraid, she feared
for officers as her dad was angry and handling
gun. His apt. was also in disarray and he was
paranoid about people coming to get him.

Rudolph v. Babinec, 939 F.3d 742,
(6th Cir. 9/20/19)
 If probable cause exists, a person's denial that they are at
risk of suicide does not by itself eliminate that probable
cause.
 Court must analyze whether a reasonable officer would
question the veracity of a suicide report based on the facts at
the scene of the wellness check that is done in response to
the suicide report.

Rudolph v. Babinec, 939 F.3d 742, (6th
Cir. 9/20/19)
 Where plaintiff alleged officers seized her in her home for a
psychiatric evaluation in violation of her 4th Amendment rights,
the district court properly denied the officers summary judgment
of the basis of immunity because a jury could reasonably find
they lacked probable cause.
 Once the gun was removed from the equation, there was no
longer an unacceptable risk of plaintiff harming herself and her
intoxication alone did not support the assertion that she was
suicidal. She denied she was suicidal, was calm, cooperative,
and the initial report was vague.

Dolbin v. Miller, 786 Fed. Appx. 52 (6th
Cir. 9/26/19)
 Despite plaintiff's calm demeanor, when officers were
presented with a report from plaintiff's daughter that he was
actively suicidal—claimed he had a gun and was barricaded
in closet--his admission that he had made a suicidal
statement that indicated he was experiencing active suicidal
ideation, and arrest instructions from a supervisor, officers
entitled to qualified immunity.
 Officers took a long time to sort this out and ask questions.

Ferreri v. City of Strongsville, 2011 U.S. Dist.
LEXIS 3456 (U.S.D.C N.D Ohio)
 Undoubtedly, Ohio police officers executing orders of involuntary
commitment (or a pink slip) for an emergency hospitalization for a
mental health evaluations should be able to rely upon the
information contained in them when taking a person into custody. In
this regard, the pink slip acts as a type of warrant.
 However, pink slips are not approved by a neutral magistrate and
they do not meet the other requirements required for a validly
executed arrest warrant. Thus, unlike a facially valid arrest warrant
— which would likely entitle the officers to qualified immunity —
such officers, as a matter of law, are required to also rely upon their
own observations of the plaintiff's mental condition before seizing
her.

Ferreri v. City of Strongsville, 2011 U.S. Dist.
LEXIS 3456 (U.S.D.C N.D Ohio)
 A reasonable jury could find that the officers executing an order
of involuntary commitment (pink slip) for emergency
hospitalization for mental health evaluation under Ohio Rev.
Code § 5122.10 did not have probable cause to believe plaintiff
was dangerous and thus, that her Fourth Amendment rights
were violated by the force used to restrain her.
 She was calm and according to officers didn’t seem mentally ill.
Officers also only vaguely knew what pink-slip said.

State v. Klase,
2019-Ohio-3392 (2nd App. Dist.. 8/23/19)
 Police officer's search of a tin container, based on the fact
that defendant had been taken into custody under former
R.C. 5122.10, was unreasonable.
 The nature of a commitment under § 5122.10 was not akin
to an arrest, and persons subject to emergency commitment
retained greater interest in their privacy and personal
autonomy than those subject to a criminal arrest. An officer
may not conduct a search akin to a search incident to a
lawful arrest based solely on ground that a person is being
taken into custody under former R.C. 5122.10.

Some Words about Civil Liability
and Qualified Immunity

42 USCS § 1983 Civil Action for Deprivation of
Rights
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress…..

42 USCS § 1988 Proceedings in
vindication of civil rights
Attorney’s fees. In any action or proceeding to
enforce a provision of sections,,, of the Revised
Statutes [42 USCS §§ 1981–1983,,, the court, in
its discretion, may allow the prevailing party, other
than the United States, a reasonable attorney’s fee
as part of the costs.

Cir. 9/26/19)
Qualified immunity shields government officials
from actions seeking civil damages, so long as
their conduct does not violate clearly established
statutory or constitutional rights of which a
reasonable person would have known.

Cir. 9/26/19)
 When determining whether a right was clearly established at
the time of the alleged offense the contours of the right must
be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.
 The 6th Circuit may rely on precedential decisions from the
United States Supreme Court, the 6th Circuit, and the
decisions of other circuit courts. In evaluating this precedent,
the court must consider whether, considering these cases, it
would be clear to a reasonable officer that his conduct was
unlawful in the situation confronted

Qualified Immunity Applies to the
Decision to Seize (PC or Not) and to
Uses of Force to Effect the Seizure.
It also would Apply to any Home Entry
Associated with a Mental Health Seizure.

Champion v. Outlook Nashville, Inc., 380 F.3d 893,
(6th Cir. 2004)
 All claims that law enforcement officers have used excessive
force 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.
 The test's proper application requires attention to 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

Champion v. Outlook Nashville, Inc., 380 F.3d 893 (6th
Cir. 2004)
 Courts have consistently concluded that using pepper spray
is excessive force in cases where the arrestee surrenders, is
secured, and is not acting violently, and there is no threat to
the officers or anyone else
 Creating asphyxiating conditions by putting substantial or
significant pressure, such as body weight, on the back of an
incapacitated and bound suspect constitutes objectively
unreasonable excessive force

Cir. 2004)
 Champion was 32 years old, lacked the ability to care for himself on
account of autism. He was nonresponsive and unable to speak.
 He had an incident with his caregiver, and she summonsed the
police. Police approached Champion as he was biting his
hand/hitting himself. Officer asked for his name and he did not
respond. He approached the officer an grabbed at her shirt. She
maced him. Champion wondered into a nearby Babys ‘R’ Us.
 Other officers arrived. They ordered him to leave the store and he
walked out. The officers believed Champion to be mentally ill (used
radio code for mentally ill person) and decided to arrest him.

Cir. 2004)
 Multiple officers took Champion to the ground. He struggled.
Champion was handcuffed and hobbled.
 Multiple witnesses reported the officers stayed on top of
Champion putting pressure on him after he was cuffed, and
while he was face down prone on the ground.
 Several witnesses also stated that the officers maced him
after he was cuffed and had quit struggling.

Cir.)
 Champion died—positional asphyxia as one cause.
The court found that officers violated his clearly established
rights to be free from the types of force administered after he was
subdued and restrained, including continuing to pepper spray him
and putting substantial pressure on his back while he was in a
face-down prone position.
 In addition to prior precedent, the Officers' training demonstrates
that they were aware of Champion's clearly established right to
be free from this type of excessive force. The Officers were
taught that pepper spraying a suspect after the individual was
incapacitated constitutes excessive force.

Cir. 2004)
 The diminished capacity of an unarmed detainee must be
taken into account when assessing the amount of force
exerted.
 The court said the following about Champion: It cannot be
forgotten that the police were confronting an individual whom
they knew to be mentally ill or retarded, even though the
Officers may not have known the full extent of Champion's
autism and his unresponsiveness

Cir. 2004)
 Once multiple officers were present and Champion had
walked out of the store, what was the hurry? What criminal
offense had he committed? To whom was he dangerous
before seizure?
 Who escalated this situation?
 What questions could/should have been asked?
 Why was the force needed? To whom was he dangerours?

Griffith v. Coburn, 473 F.3d 650 (6th Cir. 2007)
 Again the diminished capacity of an unarmed detainee must be
taken into account when assessing the amount of force exerted.
 Where it is or should be apparent to the officers that the individual
involved is emotionally disturbed, that is a factor that must be
considered in determining the reasonableness of the force
employed.
 In the United States Court of Appeals for the Sixth Circuit, a Fourth
Amendment seizure must be effectuated with the least intrusive
means reasonably available

 Decedent's mother went to the township police department to
seek advice about having the decedent hospitalized because
he had been acting strangely. The officer agreed to arrest the
decedent on an outstanding traffic warrant so that he could
be evaluated. Officers were aware he was having mental
problems/emotional issues.
 The decedent was passively watching television when two
officers arrived to arrest him—he simply said “no,” when told
he was under arrest. He resisted upon attempted arrest. After
the officer used a vascular neck restraint on the decedent, he
died from asphyxia associated with physical restraint.

The court concluded that there were material
disputes of fact concerning the reasonableness of
the officer's action in subduing the decedent.
The court also found that the right of people who
posed no safety risk to the police to be free from
gratuitous violence during arrest was clearly
established.

Landis v. Baker, 297 Fed. Appx. 453 (6th Cir. 2008)
The mental illness of a suspect is a factor to be considered in
determining the reasonableness of force employed by police officers.
Different tactics should be employed against an unarmed,
emotionally distraught individual who is resisting arrest or creating
disturbance than would be used against an armed and dangerous
criminal who has recently committed a serious offense.
When police are confronted by an unarmed, emotionally distraught
individual who has committed no serious crime, the governmental
interest in using force is diminished even when the suspect is
irrational and inviting the use of force.

 Plaintiff contended officers used excessive force during the
attempted arrest of the decedent who was suspected of moving
construction equipment to block traffic on an interstate highway.
 The decedent drowned after he was beaten with a police baton,
held down, and tasered while he was in approximately two feet
of water, mud, and sediment.
 He initially wildly fled officers and fought. However at the time of
the uses of force, decedent was surrounded by multiple officers,
was standing still in swampy water, was known to be unarmed,
and was passively swaying seemingly oblivious to the officers.

 The officers argued that the totality of the circumstances
required a finding that they did not use excessive force and that,
even if they did, they had no reason to know that their actions
violated a clearly established constitutional right.
 The court, however, held that the officers' conduct was clearly
unreasonable and that it violated the decedent's clearly
established Fourth Amendment rights.

 It is not necessary, in order to hold a police officer liable under 42
U.S.C.S. § 1983, to demonstrate that the officer actively participated
in using force against a plaintiff
 It is clearly established that putting exceptional pressure on a
suspect's back while that suspect is in a face-down prone position
after being subdued and/or incapacitated, constitutes excessive
force.
 The fact that a certain degree of force may have been justified
earlier in an encounter to restrain the suspect does not mean that
such force still was justified once the suspect had been restrained.

Martin v. City of Broadview Heights, 712 F.3d 951
(6th Cir. 2013)
 Shortly after 2:00 a.m., officers responded to a dispatch call indicating that a
male (Martin), wearing only jeans at the time, was yelling for help outside an
apartment. On his way there, Officer Tieber heard from dispatch that a
resident reported that a naked male entered a nearby apartment.
 Approaching the address, Officer Tieber encountered a naked male, later
identified as Martin, running towards his patrol car, speaking quickly and
nonsensically. Martin momentarily calmed down and asked Tieber for help,
placing his hands behind his back and insisting that Tieber take him to jail.
When Tieber grabbed Martin's hands and reached for his handcuffs, Martin
"jogged away." Tieber caught Martin before he got further than 20 feet, and
fell on top of Martin with his abdomen to Martin's back.

(6th Cir. 2013)
 Officer Semanco arrived, and observing Martin trying to push himself up,
dropped his knee into Martin's side. Semanco fell on top of both Martin and
Tieber, and delivered one or two "compliance body shots" to Martin's side
with his knee. During the struggle, Martin bit Tieber's knuckle. Tieber struck
Martin in the face with two "hammer punches." Semanco then used all of his
force to strike Martin's face, back, and ribs at least five times. Meanwhile,
Tieber gripped Martin's chin with his right arm.
 Martin was face down on the ground when Officer Zimmerman arrived. As
Tieber and Semanco attempted to get Martin's arms behind his back,
Zimmerman kneeled on Martin's calves to prevent him from kicking and
assisted in handcuffing him. The officers continued holding Martin face
down.

(6th Cir. 2013)
 The officers soon heard Martin make a "gurgling sound." When they rolled
Martin onto his side, he was unresponsive. The officers tried to resuscitate
him and called for paramedics. At 3:06 a.m., Martin was pronounced dead.
 The Coroner initially determined that Martin died from an acute psychotic
episode with excited delirium due to intoxication by LSD and
cardiopulmonary arrest.
 Dr. Stanley Seligman, the forensic pathologist who conducted Martin's
autopsy, found numerous injuries that suggested death by
asphyxiation/choking.
 Dr. Werner Spitz, a pathologist hired by the estate, offered a similar opinion.

(6th Cir. 2013)
 Applying pressure to the back of a prone suspect who no longer
resists arrest and poses no flight risk is an objectively
unreasonable use of force
 Creating asphyxiating conditions by applying substantial or
significant pressure to restrain a suspect who presents a
minimal safety risk amounts to excessive force
 Using severe force, including a neck restraint, against an
unarmed and minimally threatening individual before he is
subdued violates the United States Constitution

(6th Cir. 2013)
 The court held that the quantum of force the officers used was
constitutionally excessive, which violated the 4th Amendment right of an
unarmed, minimally threatening, and mentally unstable individual to be free
from gratuitous violence.
 The court's precedents and police department's own policies relative to force
and the mentally ill clearly established at the time of the incident that the
force the officers used to restrain the decedent was excessive.
 Officers Tieber and Semanco said they never considered this policy during
Martin's arrest. Semanco also offered that he did not think about whether
Martin might be a high-risk subject under it.

(6th Cir. 2013)
 Decedent not a danger to anyone—common theme—naked, clearly
unarmed in open parking lot running around.
 No reports of violent or dangerous behavior. Not violent toward officer.
 No de-escalation—immediate use of force/arrest/confrontation.
 No consideration of training or policy.
 No thoughts of different tactics/less force/less intrusive means? Why in a
hurry?

Estate of Armstrong v. Village of Pinehurst, 2016
U.S. App. LEXIS 380 (4th Cir.)
 Officers executed an involuntary commitment order on
decedent, decedent sat down and wrapped himself around a
post, and an officer tased him five separate times—tased initially
within minute of contact even though only passive resistance.
 Record indicates officers used excessive force in violation of the
4th Amendment because he had not committed any crime, the
justification for the seizure was to prevent a mentally ill man
from harming himself, and immediately tasing a non-criminal,
mentally ill individual, who seconds before had been
conversational, was not a proportional response.

 Mental illness, of course, describes a broad spectrum of
conditions and does not dictate the same police response in
all situations.
 But in some circumstances at least, it means that increasing
the use of force may exacerbate the situation. Accordingly,
the use of officers and others trained in the art of counseling
is ordinarily advisable, where feasible, and may provide the
best means of ending a crisis.

 Officers who encounter an unarmed and minimally
threatening individual who is exhibiting conspicuous signs
that he is mentally unstable must de-escalate the situation
and adjust the application of force downward.
 When a mentally disturbed individual not wanted for any
crime is being taken into custody to prevent injury to himself,
directly causing that individual grievous injury does not serve
the officers' objective in any respect

 Tasers are proportional force only when deployed in
response to a situation in which a reasonable officer would
perceive some immediate danger that could be mitigated by
using the taser.
 Where, during the course of seizing an out-numbered
mentally ill individual who is a danger only to himself, police
officers choose to deploy a taser in the face of stationary and
non-violent resistance to being handcuffed, those officers use
unreasonably excessive force. Such taser use violates the
Fourth Amendment.

 The taser use at issue in this case contravenes current
industry and manufacturer recommendations. PERF and the
DOJ have cautioned that using drive stun mode "to achieve
pain compliance may have limited effectiveness and, when
used repeatedly, may even exacerbate the situation."
 Moreover, Taser International warned, "Drive-stun use may
not be effective on emotionally disturbed persons or
others who may not respond to pain due to a mind-body
disconnect."

Common Theme of All of These Previous
Mental Illness/Force Cases?
 Subjects/Suspects were Known to be, or should have reasonably
been seen as, Mentally Ill/Suffering From Diminished Capacity.
 They were unarmed and not a threat to the officers or others.
 Police initiated confrontations/escalated. Officers in a hurry.
 Passive Resistance/Non-Compliance at first.
 No sense that the force needed to stop—multiple/redundant uses of
force without evaluation. No attempt at different tactics.
 Violations of policy/training

Rucinski v. Cnty. of Oakland, 2016 U.S. App.
LEXIS 12619 (6th Cir.)
 Officers acted reasonably as a matter of law in using force
against decedent when he approached to within five feet of one
officer while brandishing a knife.
 Knowledge of a person's disability simply cannot foreclose
officers from protecting themselves when faced with threatening
conduct by the disabled individual.
 Courts are required to evaluate the reasonableness of officers'
use of force by focusing on the moments immediately
preceding that use of force, and not on the adequacy of
planning or the length of time spent thinking through the
problem at hand.

San Francisco v. Sheehan, 135 S.
Ct. 1765 (2015)
 Officers are entitled to qualified immunity from liability for
injuries suffered by Sheehan where officers shot her after she
confronted them with a knife (armed).
 Even if officers misjudge the situation, an arrestee cannot
establish a Fourth Amendment violation based merely on bad
tactics that result in a deadly confrontation that could have
been avoided. Courts must not judge officers with the 20/20
vision of hindsight.

Ct. 1765 (2015)
 The Fourth Amendment standard is reasonableness, and it is
reasonable for police to move quickly if delay would gravely
endanger their lives or the lives of others.
 This is true even when, judged with the benefit of hindsight,
the officers may have made some mistakes. The United
States Constitution is not blind to the fact that police officers
are often forced to make split-second judgments.

Ct. 1765 (2015)
Law enforcement officers may enter a home
without a warrant to render emergency assistance
to an injured occupant or to protect an occupant
from imminent injury.

Case Law: Mental Health and
Home Entries

Baker v. City of Trenton, 936 F.3d 523 (6th Cir. 2019)
 Under the exigent circumstances exception concerning the
threat of violence to officers or others, police officers may enter
a home without a warrant to render emergency assistance to
an injured occupant or to protect an occupant from imminent
injury.
 A lawful warrantless entry requires an objectively reasonable
basis for believing that a person within the house is in need
of immediate aid. More specifically, this standard requires the
court to determine whether a reasonable person would believe
that the entry was necessary to prevent physical harm to the
officers or other persons.

State v. Bubenchik, 2014-Ohio-5056 (5th
App. Dist. )
 A warrantless police entry into a private residence is not unlawful if
made upon exigent circumstances, a specifically established and
well-delineated exception to the search warrant requirement.
 The need to protect or preserve life or avoid serious injury is
justification for what would be otherwise illegal absent an exigency
or emergency. The emergency aid exception does not require
probable cause, but the officers must have reasonable grounds to
believe there is an immediate need to act in order to protect lives or
property, and there must be some reasonable basis for associating
an emergency with the location.

State v. Bubenchik, 2014-Ohio-5056 (5th
App. Dist. )
The facts known to the police at the time the officer entered the
home gave them reasonable grounds to believe that entry into
the home was necessary to insure that defendant had not
attempted to harm himself.
He left wife message that he would see her in next life—he
was under criminal investigation at time and had been
interviewed by the police that day. After officers could not get
response, nor could his parents, police entered.

Case Law: Mental Health/Medical
Issues and Force

Bonner-Turner v. City of Ecorse, 627 Fed. Appx.
400 (6th Cir. 2015)
 Summary judgment should not have been granted on claims
that officers were deliberately indifferent to an arrestee's risk of
suicide, in violation of the Fourteenth Amendment, because
there was evidence that the arrestee told responders he was
suicidal and told an officer, within earshot of the other officers,
that he was not taking his medication.
 Suicidal tendencies are considered serious medical needs. The
proper inquiry in a deliberate indifference case is whether the
medical need at issue is sufficiently serious, not whether
defendants perceived it as such.
.

Estate of Hill v. Miracle, 853 F.3d 306 (6th Cir. 2017)
 The NEW test for force used during a medical emergency:
 (1) Was the person experiencing a medical emergency that rendered
him incapable of making a rational decision under circumstances that
posed an immediate threat of serious harm to himself or others?
 (2) Was some degree of force reasonably necessary to ameliorate the
immediate threat?
 (3) Was the force used more than reasonably necessary under the
circumstances (i.e., was it excessive)?

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