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IV. FINDINGSWe have reasonable cause to believe that CDP engages in a pattern or practice of using unconstitutional force in violation of the Fourth Amendment. Our review revealed that Cleveland police officers use unnecessary and unreasonable force in violation of the Constitution at a significant rate, and in a manner that is extremely dangerous to officers, victims of crimes, and innocent bystanders. This pattern of unreasonable force manifests itself in CDP’s use of deadly force, use of less lethal force, including Tasers, and use of force against restrained people and people in crisis.
A pattern or practice may be found where incidents of violations are repeated and not isolated instances. Int’l Bd. of Teamsters v. United States, 431 U.S. 324, 336 n.l6 (1977) (noting that the phrase “pattern or practice” “was not intended as a term of art,” but should be interpreted according to its usual meaning “consistent with the understanding of the identical words” used in other federal civil rights statutes). Courts interpreting the terms in similar statutes have established that statistical evidence is not required. Catlett v. Mo. Highway & Transp. Comm’n, 828 F.2d 1260, 1265 (8th Cir. 1987) (interpreting “pattern or practice” in the Title VII context). A court does not need a specific number of incidents to find a pattern or practice, and it does not need to find a set number of incidents or acts. See United States v. W. Peachtree Tenth Corp., 437 F.2d 221, 227 (5th Cir. 1971) (“The number of [violations] . . . is not determinative. . . . In any event, no mathematical formula is workable, nor was any intended. Each case must turn on its own facts.”). Although a specific number of incidents and statistical evidence is not required, our review found that CDP officers use unnecessary and unreasonable force in violation of the Constitution a significant percentage of the time that they use force.
A. CDP officers engage in a pattern or practice of unconstitutional force.Our review revealed that Cleveland police officers violate basic constitutional precepts in their use of deadly and less lethal force at a rate that is highly significant. Claims that officers have used excessive force during an arrest or detention are governed by the Fourth Amendment’s reasonableness standard. Graham v. Connor, 490 U.S. 386, 394 (1989). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Id. at 396 (internal quotations and citations omitted). The reasonableness of a particular use of force is based on the totality of the circumstances and “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. As the Sixth Circuit has stated:
The Court has identified three factors that lower courts should consider in determining the reasonableness of force used: (1) the severity of the crime at issue; (2) whether the suspect posed an immediate threat to the safety of the police officers or others; and (3) whether the suspect actively resisted arrest or attempted to evade arrest by flight. These factors are not an exhaustive list, as the ultimate inquiry is “whether the totality of the circumstances justifies a particular sort of seizure.”
Baker v. City of Hamilton, Ohio, 471 F.3d 601, 606-07 (6th Cir. 2006) (citations omitted).
The most significant and “intrusive” use of force is the use of deadly force, which can result in the taking of human life, “frustrat[ing] the interest of . . . society . . . in judicial determination of guilt and punishment.” Tennessee v. Garner, 471 U.S. 1, 9 (1985). Use of deadly force (whether or not it actually causes a death) is permissible only when an officer has probable cause to believe that a suspect poses an immediate threat of serious physical harm to the officer or another person. Id. at 11. A police officer may not use deadly force against an unarmed and otherwise non-dangerous subject, see Garner, 471 U.S. at 11, and the use of deadly force is not justified in every situation involving an armed subject. Graham, 490 U.S. at 386. The Sixth Circuit has recognized that “even when a suspect has a weapon, but the officer has no reasonable belief that the suspect poses a danger of serious physical harm to him or others, deadly force is not justified.” Bouggess v. Mattingly, 482 F.3d 886, 896 (6th Cir. 2007) (emphasis in original). In order to justify the use of deadly force, an officer’s “sense of serious danger about a particular confrontation” must be both “particularized and supported.” Id. at 891. In making our determination under Section 14141 it is not necessary to show that there is a pattern or practice of intentional or criminal misconduct by individual officers in their unreasonable use of force, and we make no such finding in this letter.
We determined that, as part of the pattern or practice of excessive force, officers fire their guns in circumstances where the use of deadly force is not justified, including against unarmed or fleeing suspects who do not pose a threat of serious harm to officers or others. We also discovered incidents in which CDP officers draw their firearms and even point them at suspects too readily and in circumstances in which it is inappropriate. In part as a result of this dangerous practice, which is both inappropriate and tactically unsound, officers strike people on the head with their guns in circumstances that do not justify deadly force. CDP officers use less lethal force—including Tasers, OC Spray, and strikes to a suspect’s body—against individuals who pose little, if any, threat, or who offer minimal resistance, including those who are handcuffed, already on the ground, or otherwise subdued. CDP officers too hastily resort to using Tasers, often in a manner that results in excessive force and demonstrates a pervasive use of poor and dangerous tactics. CDP officers also use Tasers and other forms of less lethal force against individuals with mental illness or under the influence of drugs or alcohol or who have a medical condition affection their cognitive abilities, or who may be unable to comply with officers’ demands. Collectively, these practices make up a pattern or practice of constitutional violations.
1. CDP officers shoot at people who do not pose an imminent threat of serious bodily harm or death to the officers or others.In reaching our conclusion that CDP engages in a pattern or practice of excessive force, we identified several cases in which officers shot or shot at people who did not pose an immediate threat of death or serious bodily injury to officers or others. An incident from 2013 in which a sergeant shot at a victim as he ran from a house where he was being held against his will is just one illustration of this problem. [12] “Anthony” [13] was being held against his will inside a house by armed assailants. When officers arrived on scene, they had information that two armed assailants were holding several people inside the home. After officers surrounded the house, Anthony escaped from his captors and ran from the house, wearing only boxer shorts. An officer ordered Anthony to stop, but Anthony continued to run toward the officers. One sergeant fired two shots at him, missing. According to the sergeant, when Anthony escaped from the house, the sergeant believed Anthony had a weapon because he elevated his arm and pointed his hand toward the sergeant. No other officers at the scene reported seeing Anthony point anything at the sergeant.
The sergeant’s use of deadly force was unreasonable. It is only by fortune that he did not kill the crime victim in this incident. The sergeant had no reasonable belief that Anthony posed an immediate danger. The man fleeing the home was wearing only boxer shorts, making it extremely unlikely that he was one of the hostage takers. In a situation where people are being held against their will in a home, a reasonable police officer ought to expect that someone fleeing the home may be a victim. Police also ought to expect that a scared, fleeing victim may run towards the police and, in his confusion and fear, not immediately respond to officer commands. A reasonable officer in these circumstances should not have shot at Anthony. [14]
Another incident from 2012 in which an officer shot a man who was lawfully armed and appeared to be cooperating with the officers’ orders further illustrates this problem. Two officers observed “Brian” walking with an open container of beer. When officers asked Brian to stop, he initially refused and walked to a nearby porch, set down his beer and then, according to the resulting report, turned towards the officers’ zone car in a manner that indicated he was going to speak with them. The first officer reportedly saw a gun in Brian’s waistband, yelled “gun,” and pointed his service weapon at Brian. The second officer reported that, in response, Brian raised his hands above his head and informed the officers that he had a concealed handgun license. The second officer moved behind Brian to begin to handcuff him. According to this officer’s report, Brian then lowered his hands “a bit” below ear level. Then, the first officer fired a shot that struck Brian in the abdomen. According to reports, Brian’s injuries were significant enough that he required immediate lifesaving measures. While the officer who fired the shot alleged that Brian had reached for his weapon, that account conflicts with the statement provided by the officer’s partner and the eight civilian witnesses who were on or near the porch at the time Brian was shot, none of whom reported seeing Brian reach for his gun. Numerous witnesses reported that Brian was attempting to cooperate with officers and began lowering his hands in response to an officer’s order that he place his hands behind his back.
The officer’s use of deadly force in these circumstances was unreasonable. The Sixth Circuit has recognized that a suspect’s “mere possession of a weapon is not enough to satisfy [an officer’s] burden” of establishing that the use of deadly force was reasonable. See Bouggess, 482 F.3d at 896. The shooting officer’s partner and all of the civilian witnesses confirmed that Brian informed the officers that he had a handgun license. Brian took the precise steps advised by the Ohio Attorney General’s Office when a person carrying a concealed handgun is stopped for law enforcement purposes. [15] The weight of the evidence suggests that Brian was attempting to comply with officers’ orders and did not pose an imminent threat of serious bodily harm to the officers or others, and the officer should not have fired his weapon. [16]
We also reviewed incidents where CDP officers shot at people who were fleeing in vehicles as the vehicle was moving away from the officer and the suspects’ flights did not pose a threat of serious bodily harm to anyone, rendering the use of deadly force at that point unreasonable. Shooting at a fleeing suspect violates the Constitution when the fleeing suspect does not pose a threat of serious bodily harm to the officer or others. In the Sixth Circuit, “it has been clearly established . . . for the last twenty years that a criminal suspect ‘ha[s] a right not to be shot unless he [is] perceived to pose a threat to the pursuing officers or to others during flight.’” Sample v. Bailey, 409 F.3d 689, 699 (6th Cir. 2005) (citing Robinson v. Bibb, 840 F.2d 349, 351 (6th Cir. 1988)); cf. Plumhoff v. Rickard, 527 U.S. ___ , 134 S. Ct. 2012, 2021 (2014) (finding officers’ use of deadly force against fleeing suspect reasonable where suspect engaged in “outrageously reckless driving,” leading officers on a chase that exceeded 100 miles per hour and passing more than two dozen vehicles, several of which were forced to alter course); Hocker v. Pikeville City Police Dep’t, 738 F.3d 150, 152, 158 (6th Cir. 2013) (finding police officers’ use of deadly force reasonable where officers shot an intoxicated suspect, whom the court found to be a continuing threat, after he led the officers on a seven-mile, high-speed chase at night, then reversed his vehicle, slamming into an officer’s patrol car and moving it thirty feet while an officer was temporarily trapped inside). In the words of the Supreme Court, “[i]t is not better that all felony suspects die than that they escape.” Garner at 11.
Shooting at vehicles creates an unreasonable risk unless such a real and articulable threat exists. First, it is difficult to shoot at a moving car with accuracy. Missed shots can hit bystanders or others in the vehicle. Second, if the driver is disabled by the shot, the vehicle may become unguided, making it potentially more dangerous. The dangers of this practice are recognized in Division policy, in fact. The problem is, however, that the restrictions created by this policy are not consistently enforced. Both the May 2007 and the March 2013 CDP Use of Force policies state, “Firing at or from a moving vehicle is rarely effective and presents extreme danger to innocent persons….” [17] In its 2013 review of CDP’s use of force policies and practices, the Police Executive Research Forum (“PERF”) [18] recommended that CDP policy be changed to prohibit the discharge of firearms at or from a moving vehicle unless deadly physical force is being used against the police officer or another person present, by means other than the moving vehicle. [19] In making this recommendation, PERF noted that shooting at a moving vehicle is dangerous because “it does not result in a stopped vehicle—it simply raises the chances of danger from an uncontrolled vehicle.” [20] We commend CDP for adopting PERF’s recommendation regarding shooting at moving vehicles in its most recent Use of Force policy, which was revised in August 2014. [21] However, it is too soon to determine whether CDP’s actual practices will also change in light of the new policy. CDP’s Use of Force policies revised in May 2007 and March 2013 both prohibited officers from shooting at vehicles that were no longer a threat, yet we found that officers nonetheless have done so.
In an incident from 2010, an officer shot a fleeing individual. There, officers had responded to a home because a woman reported that her ex-boyfriend was outside calling her and making threats. As officers were arresting the suspect (“Charles”), “David,” who had been sitting in the passenger seat of the car in which he had arrived with Charles, started the car as if to leave. An officer approached the car, pointed his gun at David, and ordered him to turn the car off. According to the officer, David then cut the wheels to the left and sped off so that the vehicle brushed against the officer, pushing him backwards. In response, the officer reported, he fired one round at the driver as he drove off, striking him in the back of the shoulder. Again, while the officer might well have been in danger when the car was next to him, the initial threat posed by David to the officer had ended by the time the officer shot at David, and the officer did not articulate any basis for believing that David was a threat to anyone else. Under these circumstances, the officer’s use of deadly force was unreasonable. [22]
These incidents are examples of precisely the type of deadly force prohibited by the Fourth Amendment. See Smith v. Cupp, 430 F.3d 766, 773-74 (6th Cir. 2005) (officer violated the Fourth Amendment when he shot at a suspect fleeing in a stolen police cruiser because the officer fired his weapon “after the police cruiser was past” and the potential danger to the public from the suspect’s driving off “was not so grave as to justify the use of deadly force”); Sigley v. City of Parma Heights, 437 F.3d 527, 537 (6th Cir. 2006) (officer was not entitled to qualified immunity for shooting a suspect fleeing in a vehicle where he “sh[ot] [the suspect] in the back when he did not pose an immediate threat to other officers”). We found many additional deadly force incidents that violated the Fourth Amendment in our review. These shootings also violated the CDP policy in place at the time, which prohibited shooting at vehicles that no longer pose an imminent threat. [23]
2. CDP officers hit people in the head with their guns in situations where the use of deadly force is not justified.In our review of CDP’s use of force, we also found that CDP officers use their guns to strike people in the head in circumstances where the use of deadly force is not justified. Striking someone in the head with an impact weapon is deadly force, as CDP’s own policies recognize. [24] Our review of deadly force investigations revealed that CDP officers have hit suspects in the head with their pistols in circumstances that do not warrant deadly force. This practice is partially a result of tactical errors where officers drawn their firearms at inappropriate times. In these circumstances, when officers ultimately engage physically with suspects, they do so while holding a firearm. This is an extremely dangerous practice, increasing the risk of an accidental discharge—which has happened on more than one occasion involving CDP officers—and the risk that a suspect will gain control of the weapon. It also limits the less-lethal options an officer has available to bring an actively resisting subject under control because one of his hands is occupied holding the firearm.
In an incident from 2012 that illustrates this problem, an officer’s gun discharged when he struck a suspect in the head with it. The officer, who was off-duty and dressed in civilian clothes, observed what he believed to be a drug transaction take place involving two vehicles and about six suspects. The officer approached them without calling for backup and told them to leave. When “Eric” got out of one of the cars, the officer drew his handgun, pointed it at Eric, and ordered Eric to the ground, identifying himself as a CDP officer but not showing a badge. A witness reported that she saw a man, later identified as the officer, holding a gun to Eric’s face while Eric asked repeatedly for the officer to show his badge and expressed disbelief that he was an officer. One of the occupants of the car later told police that he thought they were being robbed. The officer then began wrestling with Eric with his gun still drawn. During the struggle, the officer struck Eric in the head with the weapon, at which time the weapon discharged. Eric then broke free from the officer and ran away. The officer reported that he did not know whether the bullet struck Eric, but that Eric was bleeding from the face as he ran away. The extent of Eric’s injuries is unclear based on the documents CDP provided.
This use of deadly force was not reasonable and was quite dangerous for the arrestee, the officer, and the public. An officer’s use of deadly force is not justified where a suspect physically resists arrest but poses no imminent danger of serious physical harm to the officer or another. See Bouggess, 482 F.3d at 891 (“It cannot reasonably be contended that physically resisting arrest, without evidence of the employment or drawing of a deadly weapon, and without evidence of any intention on the suspect’s part to seriously harm the officer, could constitute probable cause that the suspect poses an imminent danger of serious physical harm to the officer or to others.”). Additionally, the officer’s actions could reasonably be predicted to escalate the situation because he engaged with Eric while off-duty without any means to identify himself as a police officer and without communicating with 911 or dispatch for back up. Moreover, the officer’s decision to physically engage with the suspect while holding his gun was dangerous. Barring extremely rare circumstances, an officer should never do this. This officer could have killed this suspect with his blow, and he also risked shooting the suspect, himself, or innocent bystanders.
Another example of this dangerous and unlawful practice is an incident from 2011 in which an officer struck an unarmed man in the head with his gun after the man had committed a minor, nonviolent offense. “Fred” had tried to shoplift a bottle of wine and a can of beer from a supermarket. The officer, who was working secondary employment at the supermarket, ordered Fred to stop as he was exiting the store. Instead of stopping, Fred ran. The officer followed him and, even though he did not claim to have seen a weapon, approached Fred with his gun drawn and ordered him to the ground. Fred said, “Shoot me.” The officer again ordered Fred to the ground, and Fred again said, “Shoot me.” As the officer stepped toward Fred, Fred moved toward the officer. The officer then hit Fred on the left side of his head with his gun, forced him to the ground, and handcuffed him. The strike to Fred’s head resulted in a laceration that required four staples to close. Again, this use of deadly force against a man who was not armed, had committed a minor offense, and who presented only a minimal threat to the officer was unreasonable and dangerous.
While officers are sometimes required to use force during the course of their duties, they are always required to do so within the constitutional parameters of the Fourth Amendment. Far too often, however, Cleveland police officers use deadly force where they do not have probable cause to believe anyone is in immediate, serious danger. In some instances, their use of deadly force places themselves and others in serious danger. This unjustified use of deadly force violates the Constitution and poses unacceptable risks to the Cleveland community.
3. CDP officers use less lethal force that is disproportionate to the resistance or threat encountered.Our review of CDP’s use of force also found that, in instances in which it is reasonable for officers to resort to some level of force in response to an individual’s actions, CDP officers too frequently resort to a type of force that is unreasonable in light of the resistance or threat encountered. Force, including less lethal force, is excessive if the level of force used is disproportionate to the resistance or threat encountered. Ciminillo v. Streicher, 434 F.3d 461, 469 (6th Cir. 2006) (“[I]n this Circuit, it was clearly established that individuals had a general right to be free from unreasonable use of non-lethal force.”). CDP officers use less lethal force—including Tasers, OC Spray, and strikes to a suspect’s body—against individuals who pose little, if any, threat, or who offer minimal resistance, including those who are handcuffed, already on the ground, or otherwise subdued. CDP officers too hastily resort to using Tasers, and they do so in a manner that results in excessive force a significant percentage of the time and demonstrates a pervasive use of poor and dangerous tactics. CDP officers also use Tasers and other forms of less lethal force against individuals with mental illness or impaired faculties, or who may be unable to comply with officers’ demands.
a. Head and body strikes.CDP officers also use less lethal force on people who are handcuffed or otherwise subdued and pose little or no threat to officers. This practice contravenes well-settled law. See Champion v. Outlook Nashville, Inc., 380 F.3d 893, 902 (6th Cir. 2004) (The Sixth Circuit has “consistently held that various types of force applied after the subduing of a suspect are unreasonable and a violation of a clearly established right.”). One egregious incident in which officers resorted to an excessive amount of force, mentioned briefly in the Background section of this letter, occurred in January 2011. On the day in question, officers apprehended Edward Henderson after he fled from the police in a vehicle, leading officers on a chase that lasted about six minutes. Mr. Henderson then pulled over, exited his van, and sat on a highway guardrail. When CDP officers approached, Mr. Henderson walked into a group of trees. As one officer approached with his service weapon drawn, Mr. Henderson responded to commands to lay prone on the ground and spread his arms and legs. Infrared video from a CDP helicopter involved in the pursuit shows numerous officers approaching Mr. Henderson, including one with a gun drawn. The helicopter officer comments, “Looks like they got the male in custody.” After Mr. Henderson was restrained, prone on his stomach, officers began kicking Mr. Henderson, and other officers appear to be striking him as well. Mr. Henderson was subsequently brought to the hospital with a broken orbital bone. The force officers used in this incident against an unarmed man, prone on the ground and surrounded by CDP officers, was unnecessary and excessive.
In another incident, an officer punched a handcuffed 13 year-old boy in the face several times. Officers had arrested the juvenile for shoplifting. While “Harold” was handcuffed in the zone car, he began to kick the door and kicked an officer in the leg. In response, the 300 pound, 6’4” tall officer entered the car and sat on the legs of the 150 pound, 5’8” tall handcuffed boy. Harold was pushing against the officer with his legs, but was handcuffed and posed no threat to the officer. Nevertheless, the officer continued to sit on Harold and punched him in the face three to four times until he was “stunned/dazed” and had a bloody nose. In considering the reasonableness of an officer’s use of force, courts “must . . . consider the size and stature of the parties involved.” Solomon v. Auburn Hills Police Dep't, 389 F.3d 167, 174 (6th Cir. 2004) (finding that a 120 pound, 5’5” tall woman posed “no immediate threat” to the safety of officers who weighed between 230 and 250 pounds and stood at least 5’8” tall). Moreover, this unreasonable use of force appears to have been designed to punish the boy rather than to control him. The Fourth Amendment does not permit force to be used for punishment. See, e.g., Baker v. City of Hamilton, 471 F.3d 601, 607 (6th Cir. 2006) (finding that officer used “unjustified and gratuitous” force when he struck a suspect in the knee because “the purpose of this hit was not to subdue . . . but rather to punish him”); Bultema v. Benzie County, 146 F. App’x 28, 37-38 (6th Cir. 2005) (unpublished) (“[R]egardless of what the suspect may have done to the police officer prior to the arrest, the police officer is constitutionally prohibited from exacting retribution once the suspect has been subdued.”).
b. Tasers and OC Spray.Our review also found that CDP officers use their Tasers and OC Spray inappropriately. Tasers are a valuable tool for law enforcement, but they are also a weapon that exerts a significant amount of force on the person and cannot be used without adequate justification for such a high level of force. One court described the effect of a Taser on a person this way: “The impact is as powerful as it is swift. The electrical impulse instantly overrides the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless. . . . The tasered person also experiences an excruciating pain that radiates throughout the body.” Bryan v. McPherson, 590 F.3d 767, 773 (9th Cir. 2009). CDP officers, however, do not treat their Tasers as weapons which deliver such a high level of force. We found, for example, that officers use Tasers as a weapon of first resort instead of employing lower level force options. We reviewed incidents where officers immediately resorted to the Taser despite the presence of other officers who could help contain the individual using lower levels of force, or where de-escalation techniques might have proved more effective than using force. We also found that officers tase people who are handcuffed and that, in some cases, multiple officers deployed Tasers simultaneously or a single officer deployed a Taser multiple times when only a single use was justified.
Additionally, CDP officers misuse the so-called “drive stun mode” of their Tasers. A Taser may be used in two different ways—either by discharging the pair of darts, which remain connected to the main unit by a conductive wire, or by applying the Taser directly to a person’s body while pulling the trigger. In the first method, an electrical circuit is complete that temporarily incapacitates a subject. The second method, called drive stun mode, inflicts pain as a compliance measure without incapacitating the subject. The practice of using Tasers in drive stun mode as a pain compliance tactic should be reserved for situations where other less painful tactics cannot be used and, in fact, may have limited effectiveness because, when used repeatedly, it may even exacerbate the situation by inducing anger in the subject. [25] In its August 2013 report to CDP, PERF recommended that CDP discourage the use of drive stun as a pain compliance tactic, and CDP agreed to do so. PERF also recommended that CDP permit officers to use drive stun only to supplement the probe mode to complete the circuit or as a countermeasure to gain a safe distance between an officer and a subject, but CDP declined to do so, without explanation. [26] In practice, we found that CDP officers frequently use the Taser in drive stun mode.
In one incident that illustrates CDP’s inappropriate use of Tasers, an officer used his Taser to drive stun a 127-pound juvenile twice as two officers held him on the ground. Officers believed that “Ivan” matched the description of a possible fleeing suspect wanted for harassing store customers and stealing. Officers chased Ivan on foot, caught up to him, and tackled him. The officers alleged that the 127-pound juvenile “continued to resist” as they both held him on ground, prompting one of the officers to deploy his Taser twice in the juvenile’s back in drive stun mode, even though both officers were holding him down. In this incident, the use of the Taser in any mode was unreasonable. There were two officers present and the juvenile was already on the ground and could have been controlled using lesser force.
In another instance from 2013, officers tased a handcuffed, fleeing prisoner, and then drive stunned him twice after having lost control of him while placing him in the back of a zone car. When officers initially confronted the individual, “Jason,” he falsely identified himself, so they decided to arrest him for “falsification.” They placed him in handcuffs and patted him down for weapons. Finding none, they attempted to place him in the back of the zone car. While they were doing so, the handcuffed Jason somehow managed to escape from the two officers and began running in the middle of the street. The officers gave chase and, when Jason did not comply with commands to stop, one officer attempted to tase him “to stop the male from causing himself severe injuries from falling or being struck.” This rationale offered by the officer should have been sufficient on its own for CDP to find this use of force unjustified, as suspects normally fall after being tased. Justifying the use of a Taser to stop a feeling, handcuffed person from falling is simply not credible. See, e.g., Bryan, 590 F.3d at 773 (officer’s use of Taser caused the subject to fall face-first onto asphalt, shattering four front teeth and causing facial contusions). Jason continued running, but according to the officers, he eventually tripped and fell to the ground. When the officers caught up to him, they attempted to hold Jason down, but the handcuffed Jason “continued to resist and not comply” with orders. Despite the fact that there were two officers present, the officers drive-stunned Jason twice while he was handcuffed and on the ground. This use of force was unreasonable. The suspect was already on the ground and was in handcuffs. The decision to drive stun him twice appears to have been made more to punish Jason for running rather than to gain control of him, which could have been accomplished with less force, if any. See Baker, 471 F.3d at 607; Bultema, 146 F. App’x at 37-38. In addition to problems with the tasings, the fact that two officers completely lost control of a handcuffed suspect is concerning. This incident of tasing a person who was already handcuffed, a practice that on its face is quite hard to justify, was not the only time we saw it occur. And each and every time we saw officers write that they had tased a handcuffed suspect, the use of force was approved up the chain of command.
Officers also have unnecessarily and unreasonably used OC spray against handcuffed people. A particularly troubling incident occurred in February 2013, when CDP officers placed a so-called “spit sock” on a mentally ill suspect, “Kent,” then sprayed OC spray over the spit sock while Kent was handcuffed and in the back of a zone car. Officers apparently then forced him to continue wearing the spit sock. The incident began when officers responded to a male who called 911 and threatened to “blow up the government,” among other threats. Numerous zone cars responded to Kent’s home. Officers placed Kent in handcuffs and, because he was spitting on them, they placed a spit sock, a hood which helps prevent the transfer of diseases from spitting, over his head. They then placed him in a zone car. Kent began to kick at the rear windows of the zone car, and a sergeant opened the door and ordered Kent to stop. Kent tried to spit on the sergeant and began kicking the window again. The sergeant then sprayed OC spray in the man’s face, over the spit sock. CDP records reflect that Kent was not immediately decontaminated, but rather was transported and not decontaminated until he arrived at the hospital. The use of OC spray was unnecessary. Moreover, spraying Kent through a spit sock, then requiring him to wear it, is cruel and amounts to unnecessary punishment. Yet, this tactic was not even questioned by the chain of command.
4. CDP officers use unreasonable force, including Tasers, against individuals with mental illness, individuals in medical crisis, and individuals with impaired faculties.Another aspect of the pattern we found is that CDP officers too often use unreasonable force against individuals with mental illness, individuals in medical crisis, and individuals with impaired faculties who may be unable to comply with officers’ demands or who may respond to officers erratically for reasons beyond their control. We recognize the challenges that people with mental illness, especially people in mental health crisis, pose to the delivery of police services. It is critical that CDP practices, particularly use of force practices, adequately take into account the population of people with mental illnesses CDP officers encounter and serve. The law requires officers to consider suspects’ diminished capacity in assessing the appropriate level of force to use. See Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir. 2004) (assessing reasonableness of force used on autistic detainee, finding, “[t]he diminished capacity of an unarmed detainee must be taken into account when assessing the amount of force exerted.”); see also Sheehan v. City of San Francisco, 743 F.3d 1211, 1231-33 (9th Cir. 2014) (holding that Title II of the Americans with Disabilities Act applies to arrests). In Martin v. City of Broadview Heights, 712 F.3d 951, 954-55 (6th Cir. 2013), a mentally unstable 19-year-old, who was naked and “speaking quickly and nonsensically” died after officers repeatedly struck him in his face, back, and ribs; handcuffed him; and continued to restrain him face-down against the ground. The Sixth Circuit held that officers violated clearly established law when they failed to take into account that the arrestee was unarmed and “exhibited conspicuous signs that he was mentally unstable.” Id. at 962. The Court found that the Fourth Amendment required the officers “to de-escalate the situation and adjust the application of force downward,” and that “the officers ignored Martin’s diminished mental state and used excessive force to control him.” Id.
CDP officers, especially the majority who are not specially trained on this issue, do not use appropriate techniques or de-escalate encounters with individuals with mental illness or impaired faculties to prevent the use of force and, when force is used, officers do not adjust the application of force to account for the person’s mental illness. In many of the incidents we reviewed, officers’ interactions with individuals with mental illness were precipitated by calls for assistance from concerned family members or civilians, and did not involve any allegations that a crime had been committed. The Sixth Circuit has recognized that “the fact that a plaintiff [alleging excessive force] . . . ha[s] committed no crime clearly weigh[s] against a finding of reasonableness.” Ciminillo, 434 F.3d at 467.
We reviewed one incident where—in response to a request for assistance—a CDP officer tased a suicidal, deaf man who committed no crime, posed minimal risk to officers and may not have understood officers’ commands. “Larry’s” mother had requested CDP’s assistance because her son, who has bipolar disorder and communicates through sign language, was holding broken glass against his neck and threatening suicide. When officers arrived, Larry went into the bathroom and sat on the edge of a half-filled tub. The officers followed and, without confirming that Larry could communicate through notes, wrote him a note saying that he needed to go to the hospital. Larry waved his hands “aggressively,” which the officers interpreted as refusal. One of the officers then grabbed Larry’s arm. Larry pulled back, “struggling” with the officer. The other officer then yelled “Taser” and pointed his finger at his Taser. Larry continued to struggle, so the officer tased Larry in his chest. This use of force was unreasonable. As an initial matter, Larry may not have understood officers’ commands. But even more importantly, Larry was not a threat to officers—he simply was pulling away from an officer, refusing to leave the bathroom, and he was not suspected of any crime. Officers should have attempted additional crisis intervention techniques instead of resorting to force against this suicidal male.
In another incident involving the use of a Taser against a person in crisis, a CDP officer tased a man, despite the fact that he was suffering a medical emergency and was strapped onto a gurney in the back of an ambulance, because he was verbally threatening officers. Two officers had been flagged down because the man was having seizures and, at the time, was lying on the sidewalk. When the officers spoke with “Mark,” he told them that he suffers from grand mal seizures and that he had been drinking. Officers called EMS and, while waiting for EMS to arrive, observed Mark have at least four more seizures. When EMS arrived, officers assisted him into the ambulance, where he was strapped onto a gurney. Once strapped down, Mark became angry and threatened to punch one of the officers and one of the medics. He then tried to unstrap himself from the gurney and balled his fist, stating that he would prefer to walk home. One of the officers then unholstered his Taser, told Mark to calm down, and threatened three times to tase him. Mark continued to try to stand up while threatening to beat the officer. The officer then drive stunned Mark on his top left shoulder. Mark had committed no crime, was strapped down and was in the midst of a medical crisis. His repeated seizures may also have left him confused and disoriented. Indeed, there is no indication that Mark could carry out his threat against the officers, particularly when he was strapped to the gurney. The officers’ decision to tase him under these circumstances was unreasonable and may have been counterproductive. See 2011 ECW Guidelines, at 14 (Using a Taser “to achieve pain compliance may have limited effectiveness and, when used repeatedly, may even exacerbate the situation by inducing rage in the subject”).
We found several problems with officers’ use of force on people who show obvious signs that they are under the influence of phencyclidine (“PCP”) that resulted in constitutional violations, including many instances in which CDP officers unreasonably deployed their Tasers multiple times. These are highly volatile and dangerous situations. Based on our review of force reports, these encounters appear to be very common in Cleveland. Despite their prevalence, CDP fails to adequately address and train its officers to effectively respond to these volatile situations. [27] We have seen these ill-prepared officers respond by using excessive force against these individuals, placing themselves and others in danger. In one such instance, officers deployed their Tasers 12 times against a man who was in the street, naked, and high on PCP, including eight times in drive stun mode. In another incident, officers repeatedly tased a handcuffed man who was high on PCP, again using the drive stun mode. The goal in addressing a dangerous situation should be to use the amount of force needed to protect the officer and the public, not to continually inflict pain on a suspect who is unable to rationally comply with police commands.