BPOC 736, Force Options Theory

Question 1

What is the definition of “Deadly Force”?

Answer 1

Force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury

Question 2

What is the definition of “Force” (NOUN - Black’s Law Dictionary)?

Answer 2

(1) Strength or energy brought to bear, cause of motion or change, active power; moral or mental strength; capacity to persuade or convince; (2) Violence, compulsion, or constraint exerted upon person or thing; (3) The quality of conveying impressions intensely in writing or speech

Question 3

What is the definition of “Force” (VERB – Black’s Law Dictionary)?

Answer 3

(1) To compel by physical, moral, or intellectual means; (2) To make or cause through natural or logical necessity; (3) To achieve or win by strength in struggle or violence; (4) An aggressive act committed by any person which does not amount to assault and is necessary to accomplish an objective; (5) Synonyms - compel, coerce, constrain, oblige.

Question 4

What is the definition of “Reasonable Force”?

Answer 4

(1) “Reasonable” or “Necessary” force is the amount of lawful physical coercion sufficient to achieve a legitimate law enforcement objective and is objectively reasonable under the facts, circumstances and alternatives confronting an officer at the time actions are taken. Source: (Black’s Law Dictionary); (2) The amount of force necessary to protect oneself or one’s property from a violent attack, theft, or other type of unlawful aggression; (3) It may be used as a defense in a criminal trial; if one uses excessive force, or more than the force necessary for such protection, he or she may be considered to have forfeited the right to defense; (4) Also known as legal force.”

Question 5

What does PC 9.02 - Justification as a Defense – state?

Answer 5

It is a defense to prosecution that the conduct in question is justified under this chapter.

Question 6

What does PC 9.03 - Confinement as Justifiable Force – state?

Answer 6

Confinement is justified when force is justified by this chapter; must terminate confinement as soon as safe or until the person has been arrested.

Question 7

What does PC 9.04 - Threats as Justifiable Force – state?

Answer 7

The threat of force is justified if the use of force is justified by this chapter; a threat to use a weapon, as long as it is just to create an apprehension that the officer will use deadly force if necessary, does not constitute the use of deadly force.

Question 8

What does PC 9.05 - Reckless Injury of Innocent Third Persons – state?

Answer 8

Even if justified in threatening or using force or deadly force, if in doing so an innocent third person is recklessly injured, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third party.

Question 9

What does PC 9.06 - Civil Remedies Unaffected – state?

Answer 9

The fact that conduct is justified under this chapter does not abolish or impair any remedy for the conduct that is available in a civil suit.

Question 10

When is a police officer justified to use force under PC 9.51 – Arrest and Search?

Answer 10

Use of force is justified when the officer reasonably believes the force is immediately necessary to make or assist in making an arrest or search or to prevent escape. The officer must identify they are a police officer.

Question 11

When is someone who is not a police officer justified to use force under PC 9.51 – Arrest and Seizure?

Answer 11

Use of force is justified by a person other than a police officer when they reasonably believe the force is immediately necessary to make or assist in making an arrest or search or to prevent an escape. Before acting, the person must express the reason for his actions.

Question 12

When is a police officer justified to use deadly force under PC 9.51 – Arrest and Search?

Answer 12

Use of deadly force is justified when the officer reasonably believes the force is immediately necessary to make or assist in making an arrest or search or to prevent escape and (1) the officer reasonably believes the person has used deadly force in the past, and (2) the officer reasonably believes the person to be arrested will cause death or serious bodily harm to the officer or another if the arrest is delayed.

Question 13

When is someone who is not a police officer justified to use deadly force under PC 9.51 – Arrest and Search?

Answer 13

Use of deadly force is justified when a person acting in a peace officer’s presence and at his direction reasonably believes deadly force is immediately necessary to make or assist in making an arrest or search or to prevent escape and (1) the third person reasonably believes the suspect has used deadly force in the past, and (2) the third party reasonably believes the suspect to be arrested will cause death or serious bodily harm to the officer or another if the arrest is delayed.

Question 14

Estate of Ceballos v Bridgwater, Porras & Mull (PC 9.51)

Answer 14

According to the Fifth Circuit Court of Appeals, this case on deadly force is clear; “an officer cannot use deadly force without an immediate threat to himself or others.”

Question 15

Milstead v Kibler, 243 F.3d 157 (4th Cir. 2001)

Answer 15

“…police officers performing a discretionary function enjoy an immunity that shields them from liability for civil damages unless (1) the officers’ conduct violates a federal statutory or constitutional right, and (a) the right was clearly established at the time of the conduct, such that (b) an objectively reasonable officer would have understood that the conduct violated that right. “

Question 16

Okonkwo v Fernandez, 2003 WL 22227858 (N.D. Tex.2003)

Answer 16

“Government officials who perform discretionary functions are entitled to the defense of qualified immunity, which shields them from suit as well as liability for civil damages, if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable officer would have known. A defendant official must affirmatively plead the defense of qualified immunity.”

Question 17

Graham v Connor, 490 U.S. 386 (1989)

Answer 17

After being stopped on suspicion of DUI, Graham asked officers to check his wallet for a diabetic decal he carried, and a friend attempted to get permission to give Graham orange juice. Charlotte police refused. During a struggle, four officers threw him headfirst into a police car. Graham sustained serious injuries resulting in his suit alleging violation of his constitutional rights. The trial court found for the police officers based on the 14th Amendment. The supreme court reversed finding the officers’ actions must be objectively reasonable in light of the facts and circumstances (being told he was diabetic, not drunk), not underlying intent or motivation.

Question 18

Brower v Inyo County, 489 U.S. 593 (1989)

Answer 18

A case in which the Court held that a police roadblock could constitute an illegal seizure under the Fourth Amendment. (Police allegedly parked the truck behind a curve with a police cruiser’s headlights aimed so as to blind him on his approach. The use of a roadblock by the police to stop Brower’s car constituted a seizure within the meaning of the Fourth Amendment.)

Question 19

Osabutey v. Welch, 857 F.2d. 220 (1988)

Answer 19

“Our inquiry is limited to whether the officers could reasonably believe that their action was permissible within the limits of clearly established constitutional principles. We believe that the exigencies of the situation, coupled with the personal corroboration of a tip from a known and reliable informant, provide sufficient basis for a finding that the officers were acting within the protection of the qualified immunity discussed in Anderson.” https://scholar.google.com/ scholar_case?case=2858564050860236138&q =Osabutey+v.+Welch,+857+F.2d.+220+(1988)&hl=en&as_sdt=6,44&as_vis=1

Question 20

Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034 (1987)

Answer 20

A federal law enforcement officer who participates in a search that violates the Fourth Amendment may not be held personally liable for money damages if a reasonable officer could have believed that the search comported with the Fourth Amendment.

Question 21

Harlow v. Fitzgerald, 457 U.S. 800 (1982)

Answer 21

Qualified immunity applies to presidential aides regarding their official actions, and it can be penetrated only when they have violated clearly established statutory or constitutional rights.

Question 22

What is “absolute immunity”?

Answer 22

Absolute immunity generally applies to legislators who are conducting their legislative functions as well as prosecutors and executive officers who are conducting adjudicative functions.

Question 23

What is “qualified immunity”?

Answer 23

Qualified immunity applies in a broader range of situations and is a more appropriate balance between the need of government officials to exercise their discretion and the importance of protecting individual rights. Cabinet members receive only qualified immunity, so presidential aides should not receive a higher degree of immunity. Their job is not so sensitive that it requires absolute immunity.

Question 24

According to PC 9.21, except as qualified by Subsections (b) and (c), [use of force] conduct is justified if the actor:

Answer 24

(A) reasonably believes the conduct is required or authorized by law, (B) by the judgment or order of a competent court or other governmental tribunal, or (C) in the execution of legal process.

Question 25

According to PC 9.21(c), the use of deadly force is not justified under this section unless the actor reasonably believes the deadly force is:

Answer 25

specifically required by statute or unless it occurs in the lawful conduct of war.

Question 26

According to PC 9.22, what is the first requirement for the defense of necessity?

Answer 26

You “reasonably believe” your actions are “immediately necessary to avoid imminent harm.”

Question 27

Can you argue that it was necessary to commit a crime in order to prevent some future threat of harm or danger?

Answer 27

No. The threat must be present, immediate, and current.

Question 28

How do you know if your belief is reasonable?

Answer 28

If someone else, standing in your shoes, would have also believed that it was necessary to break the law to escape harm, your belief will likely be considered reasonable.

Question 29

What does “Harm Caused vs Harm Avoided” mean?

Answer 29

The harm caused by your actions should not outweigh the harm you are attempting to avoid.

Question 30

When does PC 9.31 say using force is justified?

Answer 30

When the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force

Question 31

When does PC 9.31 say using force is not justified?

Answer 31

(1) verbal provocation, (2) resist an arrest or search that the actor knows is being made by a peace officer, (3) if the actor provoked the use of force, (4) when the actor was carrying a weapon in violation of Section 46.02.

Question 32

When is the use of forced to resist an arrest or search justified?

Answer 32

(1) if, before the actor offers any resistance, the peace officer uses or attempts to use greater force than necessary to make the arrest or search; (2) when and to the degree the actor reasonably believes the force is necessary to protect himself against the peace officer’s use or attempted use of greater force than necessary.

Question 33

When does PC 9.32 say a person is justified in the use of deadly force in defense of person?

Answer 33

(1) if the actor would be justified to use force under Section 9.31; (2) when the actor reasonably believes the deadly force is immediately necessary (a) to protect the actor against another’s use of deadly force, or (b) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Question 34

When does PC 9.33 say a person is justified in using force or deadly force against another to protect a third person?

Answer 34

(1) If the actor would be justified in using force or deadly force to defend himself under PC 9.31 and 9.32; (2) if the actor believes his intervention is immediately necessary to protect the third person.

Question 35

When does PC 9.34 say a person is justified in using force (but not deadly force)?

Answer 35

To prevent another from committing suicide or inflicting serious bodily injury to himself

Question 36

When does PC 9.34 say a person is justified in using both force and deadly force against another?

Answer 36

If he reasonably believes the force or deadly force is immediately necessary to preserve the other’s life in an emergency.

Question 37

When does PC 9.41 say a person in lawful possession of land or tangible, movable property is justified in using force against another?

Answer 37

When the actor reasonably believes the force is needed to prevent another from trespassing or unlawful interference with the property.

Question 38

When does PC 9.42 say a person in lawful possession of land or tangible movable property is justified in using deadly force against another?

Answer 38

To prevent another’s commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime and he believes he is the only one who can protect the property

Question 39

When does PC 9.43 say a person is justified in using force or deadly force to protect the land of a third party?

Answer 39

When the actor would be justified in protecting his own property and the third party has asked for his help or the third party is his spouse, parent, or child, resides with the actor, or is under the actor’s care.

Question 40

When does PC 9.44 say a person is justified in using a device to protect his property?

Answer 40

If he is justified under 9.41 and 9.43 and to his belief when he installs the device, it is not designed to cause a substantial risk of causing death or serious bodily injury

Question 41

When does PC 9.61 say the use of force, but not deadly force, is justified against a child younger than 18 years of age?

Answer 41

When the actor is the child’s parent, or acting as the parent at the parent’s request (grandparents, etc.), when the actor reasonably believes the force is necessary to discipline the child

Question 42

When does PC 9.62 say the use of force, but not deadly force, is justified against a person?

Answer 42

If the actor is entrusted with the care, supervision, or administration of the person for a special purpose, and when the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group (i.e., teacher)

Question 43

When does PC 9.63 say the use of force, but not deadly force, is justified against a mental incompetent?

Answer 43

If the actor is the incompetent’s guardian or similarly responsible for the care of the incompetent, and when the actor reasonably believes the force is necessary to safeguard and promote the incompetent’s welfare or to maintain discipline in an institution.

Question 44

What is the definition of “custody” under PC 38.01(1)?

Answer 44

Under arrest by a peace officer pursuant to court order or under restraint by an employee of a facility that confines persons arrested or charged with criminal offenses

Question 45

What is the definition of “escape” under PC 38.01(2)?

Answer 45

An unauthorized departure from custody or failure to return to custody following temporary leave for a specific purpose or limited period or leave that is part of an intermittent sentence but does not include a violation of conditions of community supervision or parole other than conditions that impose a period of confinement in a secure correctional facility

Question 46

When does PC 9.52 say the use of force is justified to prevent escape?

Answer 46

(1) when the use of force equals the use of force allowed to arrest him; (2) except a guard employed by a correctional facility or peace officer is justified in using any force, including deadly force, that he reasonably believes to be immediately necessary to prevent the escape of a person from the correctional facility.

Question 47

When does PC 9.53 say the use of force is justified?

Answer 47

An officer of a correctional facility is justified in using force against a person in custody when and to the degree the officer or employee reasonably believe the force is necessary to maintain the security of the correctional facility, the safety or security of other persons in custody or employed by the correctional facility, or his own safety or security.

Question 48

What does CPRC 83.001 (Civil Immunity) state?

Answer 48

A defendant who uses force or deadly force that is justified under Chapter 9, Penal Code, is immune from civil liability for personal injury or death that results from the defendant’s use of force or deadly force, as applicable.

Question 49

What is the conclusion in Tennessee v Garner, 471 U.S. 1 (1985)?

Answer 49

Absent circumstances, such as exhibition of weapons or the commission of a violent felony suggesting that the suspect is likely to pose a threat of death or injury if not immediately apprehended, the 4th Amendment prohibits seizure of the suspect by the use of deadly force.

Question 50

What did the court decide in Fraire v City of Arlington, 957 F.2d 1268 (1992) and why?

Answer 50

Officer Lowery acted in self-defense when he fired a fatal shot at Fraire. Under the circumstances of this case, a reasonable police officer could have believed that in firing he was not violating Fraire's constitutional right to be free of excessive force. Consequently, Lowery is entitled to the defense of qualified immunity for his actions in defending his life.

Question 51

What did the court decide in Graham v. Connor, 490 U. S. 386 (1989) (Use of Force) and why?

Answer 51

Writing for a unanimous Court, Rehnquist ruled that an analysis of an excessive force claim should consider whether the search or seizure was objectively reasonable, based on how a reasonable police officer would have managed the same situation. The specific intent of the individual police officer who executed the search or seizure should not matter. This case helped shape police procedures for stops that involve the use of force. An officer cannot justify these actions based on a hunch or by showing that they acted in good faith. Instead, they must carefully articulate facts and events that made their use of force objectively reasonable under the circumstances.

Question 52

What did the court decide in City of Waco v. Williams, 209 S.W.3d 216 (Tex.App-Waco, 2006, pet. den.) (Taser) and why?

Answer 52

In this interlocutory appeal of the trial court's denial of the city's plea to the jurisdiction, we must decide if the Texas Tort Claims Act's intentional-tort exception to its waiver of sovereign immunity applies when police officers shoot a person with Tasers. We hold that the plaintiffs' claims allege an intentional tort and that immunity has not been waived. We will reverse the trial court's ruling and dismiss the case against the city for want of subject-matter jurisdiction.

Question 53

What did the court conclude in Brother v. Klevenhagen, 28 F. 3d 452 (5th Cir. 1994) (Use of Force)

Answer 53

(1) Deadly force to prevent escape ruled excessive (suspect was running for the sallyport door, and he was shot multiple times.)

Question 54

What did the court conclude in Hathaway v. Bazany, 2007 WL 3200413 (5th Cir. 2007) (shooting at a moving car)?

Answer 54

San Antonio PD Officer Bazany advised of Mustang involved in gang activity. He located and approached the car as its occupants were confronting another. He directed them to pull over. When they did, the driver drove at him and struck him. He fired and killed the driver. The father of deceased, Officer Hathaway, tried to be expert but could not legitimately give evidence regarding sequence of events. His “expert” testimony was properly excluded, and summary judgment/qualified immunity was appropriate.

Question 55

What did the court conclude in Baskin v. Smith, 50 Fed Appx. 731 (6th Cir. 2002) (Handcuffing)

Answer 55

Baskin witnessed an earlier arrest and “critiqued” Officer Smith in front of a crowd. Smith allegedly walked over to Baskin’s car and told him in “vulgar, profane words,” either to get in his car, or he would be arrested. Allegedly handcuffed in a manner causing pain, 45-minute wait. Summary judgment not available, facts were in dispute. Arrest was without probable cause.

Question 56

What did the court conclude in Martinez v. New Mexico Dept. of Public Safety, 47 Fed. Appx. 513 (10th Cir. 2002) (Pepper Spray)?

Answer 56

The district court granted defendants' motions for summary judgment on her claims of charging without probable cause, arrest without probable cause, and malicious abuse of process. The court denied summary judgment on the remaining claims. Consistent with that ruling, the court denied qualified immunity to Trooper Boyd on the excessive use of force claim.

Question 57

What did the court conclude in Jennings v. Jones, 2007 WL 2339195 (1st Cir. 2007) (Pepper Spray)?

Answer 57

(1) Indian Smoke Shop, served warrant to seize cigarettes, reference taxes. (2) Ordered to go outside, arrested, not told of disorderly conduct. Resisted – could not see his hands. (3) Jones used an ankle turn, broke his leg. (4) Qualified immunity, and at issue not whether he applied the ankle turn, but if pressure was increased after resisting ceased. (5) Finding: Qualified Immunity not available, jury found that the force “increase” was excessive.

Question 58

What did the court conclude in Kuha v. City of Minnetonka, 328 F. 3d 427 (8th Cir. 2003) (Use of Canine as Force)

Answer 58

We hold that Kuha's allegation that the police officers failed to give a verbal warning prior to using a police dog trained to bite and hold is sufficient to state a Fourth Amendment claim. Thus, we disagree with the district court's initial determination that Kuha failed to allege a constitutional violation. We also disagree with the district court's conclusion that the City is not liable under § 1983 as a matter of law. We agree, however, that the individual officers are shielded from suit by qualified immunity and that the state claims were properly dismissed against all defendants.

Question 59

What did the court conclude in Robinson v. Solano County, 278 F.3d 1007 (9th Cir. 2002) (Seizure at Gunpoint)?

Answer 59

Seizure of subject at gun point who appeared unarmed. He allegedly shot two dogs earlier with a shotgun. He appeared unarmed, and they pointed guns at his head and confined him for 15-30 minutes. Confinement was ruled reasonable. Force did not appear reasonable due to unarmed appearance and nonthreatening demeanor.

Question 60

What did the court conclude in Robinette v. Barnes, 854 F. 2d 909 (6th Cir. 1988) (Use of Canine as Force)

Answer 60

Used as deadly force; Bit the neck. Deadly force was justified. Holding fatal attack on suspect by police dog objectively reasonable where undisputed testimony showed that police shouted three warnings before releasing dog.

Question 61

What did the court conclude in Cruz v. Laramie, 239 F.3d 1183 (10th Cir. 2001) (Hog-Tie/Hobble Tie)?

Answer 61

Facts. The defendant was naked running down the stairs. He was arrested; still resisting, he was hog-tied. Result. Died of positional asphyxiation. Ruling. Ruled excessive force. The district court found genuine issues of material fact respecting the claim of immunity under state law for plaintiff's tort claims. The court found that while the officers were acting within the scope of their duties, in good faith, and that those duties were discretionary rather than ministerial, their conduct was unreasonable under the circumstances. The court observed that all four factors outlined by the Wyoming Supreme Court in Kanzler v. Renner must be met and, because defendants acted unreasonably, their claim for immunity under state law must fail. Circuit Court Ruling. The circuit court ruled they could not say that at the time of this tragic incident the decedent had a clearly established right to be free from a hog-tie restraint under the circumstances. Accordingly, we must reverse the district court's denial of summary judgment on plaintiff's fourth amendment claims.

Question 62

Why is taking initiative to confront a law violator not an act of aggression?

Answer 62

Taking the initiative to confront a law violator is not an act of aggression because it is not one of hostility. It is one designed to defend and protect the community from criminality.

Question 63

What is the definition of “control”?

Answer 63

Control is that degree of influence an officer must exert over a violator to take them safely into custody. Control is a “two-way street.” An officer must be in complete self-control to be able to control a violator. The objective of using control is to elicit cooperation from the violator.

Question 64

How do emotions influence arrests?

Answer 64

Emotional responses are often the direct result of uncertainty. Uncertainty is likely to result in compensating behavior. Compensating behavior may take one of the following forms: hesitation, verbal abuse, bluff, or unnecessary force.

Question 65

What factors should an officer consider when assessing the level of force that is reasonable under the circumstances?

Answer 65

(1) Is the suspect submitting peacefully or resisting? (2) Is the suspect armed? (3) What is the nature of the crime? (4) Does the suspect have a previous arrest record or history showing a pattern of violence? (5) How many suspects are involved? (6) How much support from other officers is available? (7) What is the risk that the force chosen might cause injury to a bystander or other officers?

Question 66

Name some moral considerations pertaining to law enforcement.

Answer 66

Moral considerations include statutory and case law and whether deadly force is justifiable under the circumstances presented. Can deadly force be avoided without risk of injury or death to the officer or others?

Question 67

Name the force options available to a peace officer.

Answer 67

(1) Professional presence – entering into a scene; (2) Verbal communications – words, language; (3) Weaponless strategies – takedowns, come-alongs, etc.; (4) Weapon strategies; (a) Chemical/electrical means; (b) Stun gun; (c) Baton or impact weapon; (5) Deadly force

Question 68

What is the impact of the professional presence of a police officer on the scene?

Answer 68

The dynamics of the scene are in play when the officer receives the call. When the officers enters the scene, things change as a result of their presence. Officers must be able to think of the scene as it was before they entered it and what it becomes while they are present. People act differently under different circumstances, and officers’ entrances into a scene create new sets of circumstances. This means that officers must remain alert to the dynamics of the people present and whether elements within a group may be in the posture of assisting the officer or hostile to the performance of duty.

Question 69

Name the elements of communication.

Answer 69

(1) Words, touch, body movement, message; (2) Content - actual message; (3) Voice - verbal personality (how it is said); (4) Non-verbal - raised eyebrows, posture, etc.

Question 70

How are frustrated people likely to respond to a peace officer’s attempts at communication?

Answer 70

Frustrated people often resist.

Question 71

What tactics work to redirect behavior?

Answer 71

(1) Maintain disinterest (objectivity, free from bias, impartial, it does not mean un-interested, unconcerned, or mechanical); (2) Learn to allow people to express frustration; (3) Listen; (4) Do not take things personally

Question 72

How should an officer evaluate the bystanders at the scene?

Answer 72

(1) How is the audience reacting? Examples: receptive, hostile, critical, etc.; (2) Read audience and adapt tactics appropriately; (3) If person has a friend in the audience, you may try to enlist their help - ask the friend to help reason with and persuade the person to follow the officer's orders

Question 73

What elements may become obstacles to effective communication?

Answer 73

Time of day, weather, location, external noise, officer’s own mood, person’s values and beliefs, if the person is deaf, mentally ill, mentally disabled, intoxicated, etc.

Question 74

What is an “ethical presence”?

Answer 74

(1) An expression of self-control; (2) Use words to state purpose, not to express personal feelings; (3) Maintain professional attitude; (4) Anything perceived as hasty, irrational, or unfair, makes an officer seem unethical.

Question 75

Name five aspects of verbal communication.

Answer 75

(1) Listen; (2) Empathize; (3) Ask; (4) Paraphrase; (5) Summarize

Question 76

What does “listen” involve?

Answer 76

(1) Differentiate the real problem from the symptoms of the problem; (2) Determine priorities you must respond to; (3) Determine context of the event

Question 77

What does “empathize” involve?

Answer 77

(1) Understand the other person’s state of mind; (2) See through the eyes of the other person.

Question 78

What does “ask” involve?

Answer 78

(1) Use questions to gain control by causing others to report to you; (2) Questions to direct attention away from the problem; (3) Buys time; (4) Demonstrates concern.

Question 79

What does “paraphrase” involve?

Answer 79

(1) Repeat what you have learned in your own words; (2) Forces another person to stop talking and listen; (3) Helps to ensure that the officer understands situation

Question 80

What does “summarize” involve?

Answer 80

(1) Allows the officer to conclude the situation; (2) Officer provides the bottom line; (3) State the resolution clearly.

Question 81

Name the four types of verbal appeals.

Answer 81

(1) Ethical Appeal; (2) Rational Appeal; (3) Practical Appeal; (4) Personal Appeal

Question 82

What is included in “Ethical Appeal”?

Answer 82

(1) Based upon position as a professional officer; (2) Assures other person; (3) Persuade others of your desire for a positive outcome; (4) This appeal is useful when dealing with people who are upset and highly emotional.

Question 83

What is included in “Rational Appeal”?

Answer 83

(1) Based on use of reasoning; (2) Appeal to common sense, good judgment, or community standards; (3) Show that solution is reasonable and most likely to produce results; (4) This appeal is valuable when dealing with people having an intense sense of right and wrong.

Question 84

What is included in “Practical Appeal?”

Answer 84

(1) Based on an urgent need to change a particular circumstance; (2) Ignores long-term consequences; (3) It is a short-term solution; (4) Adapt yourself and persuade the other person that you are like them; (5) Based on the beliefs and value system of the person

Question 85

What is included in “Personal Appeal”?

Answer 85

(1) Based on addressing person’s needs and desires; (2) Set aside own personal values; (3) This type of appeal works well with headstrong people who insist on getting their own way.

Question 86

What type of calls are considered the most dangerous for responding officers?

Answer 86

Domestic violence

Question 87

What makes domestic violence calls so difficult?

Answer 87

Most calls could be categorized as “he said/she said.” One person’s saying this person hit them: the other person’s saying the opposite. (a) You can’t assume that just because there’s a female, she’s the victim, although an overwhelming majority of victims are women; (b) You’re trying to see: Do the dots connect? Do the stories line up? (c) The goal is to protect the victim and hold the right person accountable; (d) It’s a tough thing to weave your way through, while maintaining not only your safety but that of the victim.

Question 88

What are the criteria for assessing whether a person is acting professionally?

Answer 88

(1) Communicates effectively with people outside the profession; (2) Able to accurately assess the situation and define the problem; (3) Knows when to move from words to force.

Question 89

Describe a professional officer’s use of force.

Answer 89

(1) Selective (the officer knows what kind of force and how much to use); (2) Appropriate (used in a controlled and purposeful manner); (3) Able to return to words and verbal strategies once the threat to an officer’s safety (or other’s safety) is over; (3) Possesses the knowledge to recognize actions that may indicate a person is under the influence of some substance or having a mental or physical disorder; (4) Able to evaluate personal performance; (5) Capable of describing and characterizing performance to superiors; (6) An officer must be consciously competent to know the reasons for their actions in any given situation

Question 90

What was the decision of the court in Garrity v New Jersey, 385 U.S. 493 (1967) concerning evidence gathered for a criminal trial against an employee?

Answer 90

Evidence gathered from an employee under threat of dismissal is not admissible in a criminal trial.

Question 91

What chapter of the Government Code cover complaints against police officers and fire fighters?

Answer 91

Chapter 614, Sections 614.021, 614.022, and 614.023

Question 92

What was the decision of the court in Guthery v Taylor, 112 SW3d 715 (Tex. App.-Houston [14th District] 2003, no pet.) concerning criminal complaints against police officers or fire fighters?

Answer 92

The court concluded that a “complaint,” as used in Sections 614.022 and 614.023 “must be signed and in writing to be the victim’s complaint . . .” Id. At 723

Question 93

What was the decision of the court in City of Seagoville v Lytle, 227 SW3d 401 (Tex. App.-Dallas 2007, no pet.) concerning back pay and benefits?

Answer 93

The appellate court concluded that the trial court erred with respect to Lytle’s claims for back pay and claims for unspecified back benefits because those claims are barred by governmental immunity. They also concluded the trial court erred when it denied Bustos’s motion for traditional summary judgment because she has official immunity.

Question 94

What Chapter of the Local Government Code applies to departments covered by civil service statutes?

Answer 94

Chapter 143

Question 95

What Chapter of the Local Government Code applies to sheriff’s departments covered by civil service statutes?

Answer 95

Chapter 158

Question 96

What should an officer expect from an Internal Affairs Investigation Administrative Investigation?

Answer 96

Officers may be compelled to answer questions, participate in a line-up, or take a polygraph examination.

Question 97

What may happen if an officer is warned of the possible consequences of noncooperation during an Internal Affairs Investigation?

Answer 97

The officer may be subject to discipline.

Question 98

What case says any information revealed during an Internal Affairs Investigation may not be used in a criminal trial?

Answer 98

Garrity v. New Jersey

Question 99

If any answer sought by an Internal Affairs Investigator is intended for use in a criminal trial, what must happen first?

Answer 99

The officer must be given the Miranda warning contained in Article 15.11 and 38.22 of the CCP.

Question 100

Where is conspiracy against rights of citizens covered in the United States Code?

Answer 100

Title 18 Section 241

Question 101

Where is deprivation of rights under color of law covered in the Penal Code?

Answer 101

Section 39.04

Question 102

Where is deprivation of rights under color of law covered in the United States Code?

Answer 102

Title 18 Section 242

Question 103

Who investigates federal civil rights complaints?

Answer 103

The FBI

Question 104

What is referred to as “Crew Resources Management” (CRM)?

Answer 104

A management model which provides every crew member with an active voice during situations where human error can have a devastating effect.

Question 105

What was the origination of the CRM?

Answer 105

In 1977, two airliners crashed on a runway when multiple factors contributed to the two planes taxiing on the same runway toward each other. During the incident, concerns were expressed by other members of the flight crew that they were not comfortable with the situation; however, the pilot of one of the aircraft made the decision to take off despite not having been given clearance to do so. The devastating result was the death of more than 600 people on the two planes.

Question 106

What is an example from the world of law enforcement where the CRM was not followed?

Answer 106

An example from the world of law enforcement is the George Floyd case where three officers were holding a suspect on the ground with the senior officer’s knee on the neck of the suspect. Concerns were expressed by the rookie officers at the scene; however, the senior officer solely made decisions, resulting in the death of the suspect. This case resulted in very public trials and convictions of all four officers in the death of George Floyd.

Question 107

Why did TCOLE develop the CRM model?

Answer 107

To emphasize that every officer involved in an incident is responsible for what happens on the scene.

Question 108

What is the benefit of using the CRM?

Answer 108

The Crew Resource Management concept offers a concrete, practical tool to apply in real-world situations.

Question 109

According to Art. 2.1387, describe when a peace officer has a duty to intervene.

Answer 109

(a) A peace officer has a duty to intervene to stop or prevent another peace officer from using force against a person suspected of committing an offense if: (1) the amount of force exceeds that which is reasonable under the circumstances; and (2) the officer knows or should know that the other officer’s use of force: (A) violates state or federal law; (B) puts a person at risk of bodily injury, as that term is defined by Section 1.07. Penal Code and is not immediately necessary to avoid imminent bodily injury to a peace officer or other person; and (C) is not required to apprehend the person suspected of committing an offense.

Question 110

What is required of an officer who witnesses the use of excessive force by another peace officer under Art. 2.1387(b)?

Answer 110

(b) A peace officer who witnesses the use of excessive force by another peace officer shall promptly make a detailed report of the incident and deliver the report to the supervisor of the peace officer making the report.

Question 111

What does Art. 2.33 say regarding the use of neck restraints by police officers?

Answer 111

(b) A peace officer who witnesses the use of excessive force by another peace officer shall promptly make a detailed report of the incident and deliver the report to the supervisor of the peace officer making the report.

Question 112

Section 2 supports the officers’ duty to intervene. What does it address?

Answer 112

The CRW addresses the concerns of all team members. It will likely slow a scene down and allow rational thought to overcome emotions

Question 113

Police officers are humans and have times when the frustrations of the job may overwhelm them. Who helps keep these emotions in check and stops them from acting on these feelings?

Answer 113

The team. Everyone is responsible for noticing and intervening if necessary to help a fellow officer. Intervention is better than allowing incidents like have been discussed from taking place.

Question 114

What does following the CRM prevent?

Answer 114

Emotions from becoming regrettable actions; maintains accountability for all involved; controlling emotional responses becomes a team effort

Question 115

What is the danger of “excessive professional courtesy”?

Answer 115

Officers who observe excessive force being used either fear speaking up because they are the junior officers, or they speak up but then give in to the use of excessive force because of their junior rank.

Question 116

What do the new rules say will happen if junior officers extend professional courtesy and something goes wrong?

Answer 116

All officers on the scene will be equally responsible for the outcome

Question 117

What does the TCOLE policy on duty to report require of all officers present at a scene where the use of force is being considered excessive?

Answer 117

They have a responsibility to prevent the use of excessive force, and they are required to report the events that took place to their supervisor in the form of a written report as soon as possible.

Question 118

Does the duty to provide a written report stand if team members are able to intervene successfully?

Answer 118

Yes. The actions must be recorded in writing.

Question 119

What could occur if an officer fails to report improper use of force by a fellow officer?

Answer 119

Failure to report may result in disciplinary action, up to and including termination.

Question 120

What are the steps in the CRM techniques?

Answer 120

(1) Get Attention, (2) State the Concern, (3) State the problem as you see it, (4) Suggest a solution, (5) Obtain agreement (buy-in)

Question 121

What can you do to get the attention of an officer using inappropriate force?

Answer 121

Use a loud and clear voice and address them by name or title: “Danny”! “Corporal”! “Sergeant!”

Question 122

How can you diplomatically state your concern?

Answer 122

State what you see in a direct manner; own your emotions about it: “I am concerned for the health and safety of the suspect.”

Question 123

How should you state the problem as you see it?

Answer 123

Be specific and concise: “It seems he is suffering from positional asphyxia.”

Question 124

How can you state a solution?

Answer 124

When necessary, acknowledge possible objections to the solution. Provide a solution that best resolves your concerns while considering the possible consequences of that solution: “The suspect is securely detained and is no longer a threat. We need to roll him over to ease his breathing.”

Question 125

How do you obtain agreement to your suggestion?

Answer 125

Get the officer to either agree or provide an alternative solution that will resolve the concern. “Does that sound good to you?” or “Do you agree?” or “What are your thoughts?”

Question 126

How should you communicate in time-sensitive situations?

Answer 126

Avoid using personal pronouns. Instead, use titles or names: “Danny, the suspect is approaching your right side!” Danny should respond likewise: “Covering right side.” Your response should follow suit. “I’m going non-lethal.”

Question 127

What are some factors the court may consider as mitigating factors in an officer’s trial?

Answer 127

(1) The nature of the offense in which control was lost; (2) Actions of third parties who were present; (3) An emergency situation which existed; (4) Behavior of the person against whom force was used; (5) The physical size, strength, and weaponry of the arrestee; (6) Known character of the arrestee

Question 128

When is an action considered unreasonable?

Answer 128

(1) A reasonable man in similar circumstances would recognize the act as involving a risk of harm and a risk of such magnitude as to outweigh the utility of the act or the manner in which it was done; (2) an officer’s conduct in discharging his weapon creates a danger recognizable as such by a reasonable and similarly situated officer, they will be held accountable to others as the proximate result of his conduct.

Question 129

What factors may be used against an officer at trial?

Answer 129

(1) Written directives of an agency may be used against the officer and/or the agency; (2) Written directives of an agency may be used to support the officer and/or the agency; (3) An officer using more force than the agency’s written directives allow is increasing his vulnerability to legal liability.

Question 130

Should an officer “share” an attorney with the agency?

Answer 130

No! If the officer argues he was only following department policy, then he is in direct conflict of interest with the agency. The officer should always have his own attorney.

Question 131

How is an officer’s liability affected by following (or not following) prudent police procedures?

Answer 131

The officer’s liability is affected by not following prudent police procedures prior to the decision to use force. Failure to follow proper procedures can make a situation more dangerous. Failing to follow prudent procedures in stopping and confronting suspects may increase the risk that force be used. An officer can be found liable in his justified use of deadly force if his negligent conduct created a danger for himself or others.

Question 132

Why may other officers be held responsible for failure to intervene?

Answer 132

A police supervisor has an affirmative duty to intervene and stop officers who are engaging in excessive force in their presence; (2) A non-supervisory officer has an affirmative duty to intervene to stop officers and/or supervisors who are engaging in excessive force in their presence; (3) (CCP Art 2.13) (a) - It is the duty of every peace officer to preserve the peace within the officer’s jurisdiction. To affect this purpose, the officer shall use all lawful means. (b) The officer shall: (1) in every case authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime. A peace officer or peace officer supervisor has the duty to intervene if officers are engaging in the excessive use of force.

Question 133

What did the court find in Davis v Rennie concerning duty to intervene?

Answer 133

Davis v Rennie, 264 F3d 86 (1st Cir. 2001), holds that “An officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer’s use of excessive force can be held liable under 42 USC Sec. 1983 for their nonfeasance.

Question 134

What did the court find in Shaw v Stroud regarding duty to intervene?

Answer 134

Shaw v Stroud, 13 F.3d 791 (4th Cir. 1994), Supervisor may be liable for acts of subordinate, even where supervisor has no direct involvement if the supervisor has failed to document and take corrective action for prior similar acts of misconduct.