Reckoning with force

How much force can local law enforcement use before it becomes excessive?

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Three officers in the Boulder County Sheriff’s Office grabbed and pulled Lauren Gotthelf out of a holding cell and onto a restraint chair. They believed she had made a suicidal statement — “I’ll just kill myself, I can hang myself,” a deputy claims she said — but Gotthelf, disagreeing that she had said anything to that effect, was not willing to put on a suicide smock, and so the deputies prepared a restraint chair.

After being put in the chair, a deputy immediately grabbed Gotthelf under the chin and lifted up, a maneuver called a hypoglossal hold, as several other deputies positioned themselves around the chair attempting to secure Gotthelf to the seat. 

The band across her lap was secured. Deputies also had their hands on her legs and neck, and her hands were tied behind her back. Still, nine times officers told her “sit down,” and a mesh spit bag was secured over her head. 

The 10th time she was told to “sit down,” a deputy placed a Taser to her thigh and pulled the trigger. Gotthelf screamed, her voice muffled because of the hold on her jaw, as a deputy told her, once more, to “sit down,” and that, “It’ll happen again.” 

Deputies undid the restraint on her hands and secured her wrists to the armrests of the restraint chair. “Stop resisting,” one officer repeated. Each time, Gotthelf pleaded, “He’s got my neck.”

Gotthelf was in custody for smoking a cigarette on the Pearl Street Mall and walking her service dog without a leash. She refused to sign a summons for the violations.

Bodycam footage of the event in the Boulder County Jail made international news. It’s jarring to watch as at least eight deputies surround Gotthelf, a young, slight woman in clear discomfort, and force her into the restraint chair. 

But the officers’ use of force was “reasonable” and “in good faith,” according to the Sheriff’s Office. It was textbook.

“The deputies did not use excessive force against Ms. Gotthelf,” the Sheriff’s Office wrote in a statement. “They used a deliberate and calculated amount of the minimal amount of force required to reduce violence and ensure safety, in accordance to our Use of Force policy and our Conductive Energy Devices policy.”

As support for their use of force, the Office claims Gotthelf was “disruptive,” “continually made negative, vulgar, and racist comments,” yelled “insults for [45] minutes,” and because of her behavior, “the restraints on the chair could not be secured.” 

There is plenty to unpack, as lawyers for the Sheriff’s Office and its officers, as well as those for Gotthelf, will try to do following a lawsuit Gotthelf filed in federal court, claiming the use of excessive force and violations against the Americans with Disabilities Act. But the event provides an opportunity to look at how use of force guidelines are developed in the first place, how juries are instructed to review cases like Gotthelf’s and what citizens can do to change the way officers serving and protecting their communities use force. 

•  •  •  •

The Boulder County Sheriff’s Office outlines its use of force guidelines in its Policy and Procedures manual. Deputies may “use only the amount of physical force that is objectively reasonable to affect an arrest, prevent an escape, defend themselves or another from bodily harm, or preserve the peace.”

It recognizes that there are “infinitely variable” situations that deputies will encounter on the job and that different levels of force may be necessary based on the “size, strength, age and gender” of the deputy and subject involved. 

Deputies are trained in de-escalation tactics, reasonable alternatives to force, threat perception and laws regarding the use of force. All uses of force are subject to an internal review.

There are separate guidelines for using lethal and non-lethal force. In Gotthelf’s case, non-lethal force was used to restrain her to the chair, and the Office’s guidelines say that such force can be used to protect deputies and others from harm, bring an unlawful situation under control, and “effect an arrest or restrain or subdue a resistant person.”

That policy differs from the Boulder Police Department’s use of force guidelines, which prescribes specific amounts of force to be used on different types of resistance. For instance, if Gotthelf was indeed resisting being put in the restraint chair by going limp, that would likely fall under “passive resistance,” for which the use of pain control instruments, like a Taser, would be prohibited. 

If Gotthelf was “buck[ing] her body and be[ing] physically resistant,” as the Sheriff’s Office claims, when deputies were trying to restrain her, the City of Boulder guidelines might consider that action “defensive resistance,” and allow that control holds, like the hypoglossal hold used on Gotthelf, be used. 

The Denver Police Department’s use of force guidelines are different still, enumerating specific weapons and tactics officers are allowed to use and when — for instance, the use of Taser is allowed only to “incapacitate, safely control, or take into custody an individual whose conduct rises to Active Aggression,” which Gotthelf’s behavior certainly does not, under any policy. It also asks officers to mind a subject’s medical and mental condition, physical limitations, developmental disabilities and the severity of the crime under investigation, all of which might pertain to Gotthelf’s case. 

So three law enforcement agencies operating close to one another have three very different use of force guidelines that might have resulted in three different outcomes in Gotthelf’s case. That’s par for the course, says Seth Stoughton, a former police officer, now a law professor who wrote the book, Evaluating Police Uses of Force.

Stoughton looked at use of force guidelines at hundreds of law enforcement agencies across the country and found “there is a lot of room for variation.”

“One study looked at over 1,000 different agencies and found over 120 different permutations of one particular part of a use of force policy,” Stoughton says. “That particular part of the policy they were talking about was what’s typically referred to as a force matrix, or force progression, where they say these are all the types of force they can use, categorized in different ways.”

Some agencies consider some forms of resistance or aggression to be more serious and prescribe certain uses of force to overcome those actions. Others don’t list out actions that require a use of force, only offering guidelines. Some agencies allow certain tactics, like a chokehold, others don’t.

“There’s no consistency,” Stoughton says. “Some agencies allow officers to use Tasers, where other agencies don’t.”

That’s problematic because citizens should know what to expect from the law enforcement agencies charged with protecting them. It’s also problematic because it does not ensure that any one individual law enforcement agency is using the best practices for using force.

Law enforcement agencies develop their use of force guidelines in a variety of ways — they can adopt guidelines from agencies in other jurisdictions, some develop them in-house with experts and community input and some just keep what’s been on the books for decades. Many use third-party for-profit companies to develop guidelines, such as Lexipol, whose guidelines are used by more than 3,500 agencies across the country. Some agencies even take input from police weapons’ manufacturers.

“The vendors are in the business of selling a particular weapon so they might be incentivized to suggest a weapon is an appropriate way to address situations where the weapon isn’t actually appropriate,” Stoughton says. “If agencies just adopt the manufacturers’ sales pitch as policy, it may be putting officers into the position of using a weapon where it is inappropriate, either because the weapon is too much force or the weapon is insufficient force to deal with that particular situation, or it might be the wrong type of force.”

Stoughton says though it may be effective for agencies to consider use guidelines from manufacturers, they shouldn’t be codified without scrutiny. 

“The public, in a representative democracy, has a vested interest in having public policies developed in a collaborative and democratic way, in a way that is best suited to advance the public interest. Vendors and manufacturers do not have the same incentives,” he says.

Boulder County Sheriff Joe Pelle declined to be interviewed for this story, citing the ongoing litigation and advice from the County Attorney not to provide further comments. He did, however, provide background on how the Sheriff’s Office developed its use of force guidelines.

“In general, our use of force policies were developed following other model polices, the Constitution and state law, and are reviewed by the County Attorney’s Office. Use of force events are reviewed by supervisors to ensure policy and law compliance. They are tracked,” Pelle wrote in an email to Boulder Weekly. “Our deputies receive up-to-date and ongoing training regarding liability issues from qualified attorneys and of course are aware of the legal standards that govern the use of force.”

•  •  •  •

Use of force guidelines vary between agencies and there’s no law that prescribes consistency. That is, even though some agencies ban the use of Tasers, others limit their use, and still others allow liberal use of the instrument because they are legal federally (and in Colorado), they’re use would not spur repercussions if used in an “objectively reasonable” manner.

That doesn’t mean using a Taser, which has contributed to the death of people in police custody, or other instruments or techniques of force makes for the best policy.

Tasers operate primarily in two modes: the standard mode where two probes are shot into a person, and electricity flows between the probes causing the muscles to spasm and the Tased person to become rigid. It also works in a “drive stun” mode, as in Gotthelf’s case, where the device is placed directly against the skin and the two electric receptors on the device itself send a localized current, causing pain. It doesn’t, however, limit risk to the person being Tased, nor is it even considered an effective tool in most circumstances.

Take it from the U.S. Department of Justice, which wrote in its 2011 Electronic Control Weapons Guide that drive stun mode should be used primarily to create a safe distance between an officer or subject, or to complete a circuit if a probe is broken. But, “Using the [drive stun] to achieve pain compliance may have limited effectiveness and, when used repeatedly, may even exacerbate the situation by inducing rage in the subject.”

And Tasers specifically should not be used on people in mental duress, which certainly would have been the case in Gotthelf’s episode if Boulder County Sheriff’s Office deputies believed she was suicidal.

“The Taser should not be used in drive stun mode against someone in mental health crisis because pain compliance techniques are generally less effective on someone who is experiencing that mind-body disconnect,” Stoughton says. “Taser training typically suggests now if you’re using a drive stun on someone who is experiencing mind-body disconnect, it may just infuriate them and make the situation worse.” 

In its statement regarding the Gotthelf case, the Sheriff’s Office wrote that, “If a person is uncooperative and fails to comply with verbal instructions given by deputies, we may use a conductive energy device (e.g. Taser) to gain compliance, with the goal being to use the least amount of force possible to reduce the risk of violence, or the need to get into a physical altercation.” 

But Gotthelf’s lawsuit claims just because it’s policy doesn’t mean it’s right.

“[The Sheriff’s Office’s] policies provide for Tasing detainees who are restrained. Such Tasing violates the clearly established constitutional rights of detainees, including Ms. Gotthelf,” it reads.

“The fact that someone is noncompliant in and of itself does not justify the use of force,” Stoughton says. “The question with force is not, was the subject noncompliant or resisting? The question is, what government interests do their behaviors threaten? Was there a threat they were going to escape? Was there a threat they were going to injure officers, themselves and others?”

•  •  •  •

Gotthelf is claiming that her 14th Amendment rights “to be secure in her person from the use of excessive force” were violated. She’s also claiming that the Sheriff’s Office and its deputies violated the Americans with Disabilities Act because they “knew and/or perceived” Gotthelf had a mental health disability and didn’t accommodate it.

“The Boulder County Defendants deliberately failed to reasonably accommodate Ms. Gotthelf’s known disabilities — including her mental health issues and suspected suicidal ideation — and instead treated her worse than her non-disabled counterparts in the jail solely because of her disability,” the lawsuit reads.

In cases like these, juries are instructed to view the use of force through the officers’ eyes. That’s intended to prevent jury members from punishing, or rewarding, officers for not knowing information they couldn’t have possibly known at the time. 

The key phrase when it comes to use of force cases is “objectively reasonable” — once all the circumstances are laid out, would an average person reasonably use the same amount of force as the officer had? It creates a lot of room for interpretation, but Stoughton says when these cases are litigated, the facts are pored over.

“The jury has to believe that the officer not only could perceive and did perceive the threat to themselves,” he says. “The jury also has to assess that the belief was reasonable. An officer can say, ‘I was in fear for my life,’ and the jury can say, ‘OK, we agree, we think you were honestly in fear for your life, but we think that was an incredibly unreasonable overreaction.’ Or the jury can say, ‘Based on the information that was available, it makes sense that the offer was in fear for his life.’

“Two different officers in exactly the same situation might be justified using different kinds of force,” he adds, providing the example of one 6-foot-2, 220-pound officer trying to restrain a person of the same size, and an officer who is 5-foot-1, 110 pounds trying to restrain that same person.

The culmination of this lawsuit could result in changes to the Boulder County Sheriff’s Office use of force guidelines. (It also, very well, could not). But given the temperature of the community after the bodycam footage was released, there is likely an appetite in the Boulder County community to revisit Taser and other use of force policies. Losing a lawsuit might be enough to restrict the use of Tasers, for instance, but failing that, public pressure, communicating with law enforcement and, ultimately, voting for Sheriff could change use of force guidelines with which the community has an issue.