Interesting article with some historical perspective:
Law Enforcement, Corrections,
Private Security, and Civilian
Risk Management
Flashlights and Liability
by John G. Peters, Jr., M.S., M.B.A.
and Michael A. Brave, Esq., M.S., C.P.S., C.S.T.
(Copyright 1993, by the authors. All rights reserved.)
When the City of Detroit, Michigan paid five million dollars to settle the civil lawsuit regarding the alleged police flashlight beating death of Malice Green, it quickly shifted the media spotlight on the criminal proceedings against the accused officers. However, this incident has re-focused the attention of many law enforcement administrators on the ubiquitous and necessary flashlight. While some administrators will use the Malice Green incident to justify and reinforce a policy of not allowing officers to use the flashlight as a defensive impact tool, others will use this incident to illustrate the improper use of the flashlight, and to highlight what can happen to officers if they misuse this necessary tool. Those administrators who are "on the fence" about what direction to give officers regarding the defensive uses of the flashlight may have a tendency to ban it; an understandable, but unfortunate knee-jerk reaction. And, finally, there are sure to be some departments which do not have a policy on the reasonable defensive uses of a flashlight, leaving its use up to the discretion of the officer. If (s)he uses it properly (assuming the officer is both justified and reasonably trained), the lack of policy may still become a hurdle to be cleared when raised by the plaintiff's attorney. However, if the officer "skulls" someone (whether reasonably justified or not), there is an immediate and negative reaction from Internal Affairs, and a focal point for the plaintiff's attorney.
Regardless of your present position on the use of flashlights as defensive impact tools, we ask that you keep an open mind as you read this article. We will attempt to present a balanced view of the legal and practical pros and cons of allowing officers to use a flashlight -- plastic or metal -- as a defensive impact tool. Policy and training issues will also be addressed.
An Historical View
It was during the late 1890's when flashlights were first sold to the public.(1) Police soon found the hand-held, portable lighting device very useful in their work. And in a short time, the flashlight had been adopted as an ersatz baton, and found its way into excessive use of force claims.(2) But is wasn't until Donald Keller, then a Deputy Sheriff with the Los Angeles (CA) County Sheriff's Department, invented the heavy-duty "Kel-Lite" that the issue of flashlights and force came into its own. By his own admission, Don Keller said that he invented the heavy-duty flashlight primarily as a defensive tool, and secondarily as an illumination device.
After hearing or reading about a flashlight "abuse", case, some administrators have unilaterally banned the heavy-duty, or aluminum, flashlight. They have replaced it with a plastic flashlight, hoping that officers would not strike a person on the head with a flashlight that is prone to breaking. Truthfully, this is treating a problem's "symptom" instead of treating its "cause" -- you know, the banning of citizen's handgun ownership to stop crime (e.g., New York and Washington, D.C.).
The Real World
Noted Pennsylvania police officer and Defensive Tactics Institute, Inc. - qualified Tactical Flashlight Instructor, A. David Berman, focuses on the "cause" of the problem. "An officer must be trained to use the flashlight as a shooting aid, and also as a defensive tactical tool. When a driver is stopped at 2 a.m. and then suddenly exits the car and begins to assault the officer who is holding a flashlight in his/her hand, experience has shown that the officer will likely use the flashlight to help defend against the attacker." We agree. In such a situation, the officer will, most likely, use the flashlight as a "baton" to help defend him/herself. And even though the officer may be legally justified in the force used, liability may be created from the agency's policy. But prior to examining how an agency's policy can trigger liability, let's briefly look at how much force the officer may legally use.
Reasonable Force
Officers, including the one being assaulted during the traffic stop example, may use "objectively reasonable force" to defend him/herself, based upon the totality of the circumstances known to the officer at the time of the event.(3) Any restraint of an individual, lawful or unlawful, by the officer, will be considered a use of force. And, an officer's use of force upon a free citizen is governed by the Fourth Amendment's "objective reasonableness" test.(4)
The officer must be objectively reasonable in his/her application of any force, including the use of a flashlight. Unfortunately, in some cases, officers have used too much force with a flashlight. Most administrators will recall the McDuffy incident where a black motorist died after being pulled over in Miami and allegedly beaten with a flashlight.(5) More recently, the Bobby Jewett incident, involving another Florida police agency, got national attention on the television program "48 Hours." Mr. Jewett was allegedly hitchhiking when he was approached by two West Palm Beach police officers. According to the officers' version of the incident, they hit Mr. Jewett with flashlights to keep him from getting the handgun of one of the involved officers. Although acquitted on criminal charges, the community outrage helped influence the Mayor to bring in former New York City Police Commissioner, Patrick Murphy to conduct an independent investigation. In other flashlight cases, juries have awarded large amounts of money to victims or have sent officers to jail when convicted on criminal charges.(6) Collateral issues of training and policy are often as significant as the excessive force issue.
Training and Policy Considerations
Flashlights don't hit people. At times, law enforcement officers are force to hit people, and sometimes they use a flashlight. Issues such as whether the officer was trained to use the flashlight as a defensive impact tool, or what policies govern its use must be answered by the officer's employer after the lawsuit or criminal charges are filed. To properly examine these two areas, we will first examine policy.
Since officers have a need for hand-held illumination, the agency administrator must decide is (s)he will authorize the flashlight for only illumination purposes. If this becomes policy and the officer is force to use the flashlight as a defensive impact tool, there may not be a question about the level of force, but there may be one regarding the policy infraction. Even though the officer may have been legally justified in using the flashlight to defend him/herself, the officer may be disciplined or terminated, for policy violation. Also, the policy may have inadvertently established a standard which the officer violated and, in some jurisdictions, created liability that could have been avoided, had a realistic, street-useable flashlight impact tool policy been written and adopted.
If the flashlight is issued for both an illumination device and as a defensive impact tool, then officers must be properly trained. Since both of these policies indicate that the flashlight is a required piece of equipment, officers need be trained in its use. In the United States Supreme Court case City of Canton, Ohio v. Harris,(7) officers need to be trained in their core duties. Since the use of the flashlight appears to be a "core duty" under both of our "policies", then officers need to be trained in its proper usage. And this includes its marriage with firearms, too.(8)
An agency's failure to train its officers may result in "deliberate indifference". Specifically, the Canton Court ruled that, 'Only where failure to train reflects a `deliberate' or `conscious' choice by a municipality [in other words] a `policy' as defined by our prior cases - can a city be held liable to such failure under [42 U.S.C.] Section 1983."(9) One crucial issue in a failure to train case will be whether inadequate training practices 'can justifiably be said to represent city policy."(10) flashlight training, should, at the very least, allow law enforcement employers to stay below the 'deliberate indifference" threshold.
A flashlight training program must include how to use the flashlight as a defensive impact tool, what areas of the human body to generally avoid (unless the officer or a third party is faced with the imminent threat of deadly force), plus the constitutional limitations of the use of force. In Davis v. Mason County (11) there are more training aids and policies which direct officers on the proper use of the flashlight, including the International Association of Chiefs of Police Training Key # 76 which discusses the structural weaknesses of the human body.(12) Many criminal justice agencies have implemented flashlight training programs, and in some cases, have even had their liability insurance premiums lowered.(13) But training and policies are no "magical cure" for avoiding flashlight liability.
Supervision Too
First-line supervisors need to understand the policies which govern the officer's use of the flashlight. Also, they need to be trained in the proper use of the flashlight. Because first-line supervisors are often sued in addition to the officer who was at the scene, they, too, face liability.(14) Many agencies have trained selected first-line supervisors as "tactical flashlight instructors" to better able them to monitor officers' use of this necessary piece of police equipment.
Conclusion
When there is a "bad" shooting or a high-speed chase which ends in a fatality, police administrators do not ban firearms or squad cars. Conversely, when an officer strikes a person with his/her flashlight, often times, the knee-jerk reaction is to "ban" flashlights. Banning heavy-duty flashlights, issuing flashlights too small to be used as a defensive impact tool, or directing officers to carry only plastic flashlights is not the solution to the problem. After all, plastic lights can break upon impact, and then severely cut the person with the ragged, broken edges of plastic. Solid policies coupled with job-related training can help to minimize your agency's liability. These steps are designed to help solve the problem, which should prevent a Malice Green incident from occurring in your agency.
Copyright 1993 by Michael A. Brave and John G. Peters, Jr. All rights reserved.
