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Back to Archives | Back to April 2005 Contents 

Chief's Counsel

Chief's Counsel:Police Use of Force: The Problem of Passive Resistance

Edmund Zigmund, Senior Instructor, Legal Division, Federal Law Enforcement Training Center, Glynco, Georgia






assive resistance is a civil disobedience technique that reflects a philosophy of nonviolence, personal suffering, and sacrifice of self.1 Such notable persons as Mohandas Gandhi and Martin Luther King used this technique effectively.2 Protestors and demonstrators employing passive resistance techniques can pose a substantial challenge for police officials because our society abhors police brutality.3 Law enforcement officials often find themselves facing civil lawsuits alleging excessive force following such events.

A Degree of Physical Coercion Allowed
In Graham v. Connor the Supreme Court said the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.4 However, under the Fourth Amendment, any use of force must be "objectively reasonable." Its proper application requires careful attention to the facts and circumstances in each particular case, including the severity of the crime at issue; whether the suspect poses an immediate threat to the safety of the officers or others; whether the suspect is actively resisting arrest; or whether the suspect is attempting to evade arrest by flight. Several cases from the federal appeals courts shed light on how these standards may apply to cases of passive resistance.

In Forrester v. City of San Diego police confronted several antiabortion demonstrations.5 Protesters converged upon medical buildings, blocked entrances, filled stairwells and corridors, and prevented employees and patients from entering. When police attempted to remove them, the demonstrators passively resisted by remaining seated, refusing to move, and refusing to bear weight.

Before each arrest, the officers warned the demonstrators that they would be subject to pain compliance measures if they did not move, that such measures would hurt, and that they could reduce the pain by standing up, eliminating the tension on their wrists and arms. The officers then forcibly moved the arrestees by tightening police nunchaku, commonly known as "nunchuks," around their wrists until they stood up and walked. All arrestees complained of varying degrees of injury to their hands and arms, including bruises, a pinched nerve, and one broken wrist.

The Forrester court held that substantial evidence supported a jury verdict for the police and the city under the Graham reasonableness standard. First, the force consisted only of physical pressure administered on the demonstrators' limbs in increasing degrees, resulting in pain.

Second, although many of these crimes were misdemeanors, the city had a significant interest in preventing organized lawlessness. The police were justifiably worried about the risk of injury to the medical staff, patients of the clinic, and other protesters.

Third, police officers are not required to use the least intrusive degree of force possible. Each officer had the discretion to use force or not and, if deciding to do so, how much force to apply.

After the demonstrators ignored pleas to desist and warnings regarding pain compliance techniques, the officers used minimal and controlled force in a manner designed to limit injuries to all involved.

Examples of Excessive Force
In Headwaters Forest Defense v. County of Humboldt three nonviolent protests occurred against the logging of ancient redwood trees.6 Protestors linked themselves together with self-releasing lockdown devices known as "black bears." When in place, the devices immobilized their arms and prevented their separation, although the protestors could disengage themselves from the devices. Police used pepper spray on the protestors, and then refused to give them water to wash out their eyes, in order to force the protestors to release themselves from the black bears.

On appeal, the court held that the use of pepper spray on the eyes and faces of these nonviolent, passive protestors was excessive force under the circumstances.

In Amnesty America v. Town of West Hartford two antiabortion demonstrations took place at an abortion clinic.7 The protestors entered the clinic, chained themselves together, and blocked entry to the medical services area in order to prevent women from obtaining abortions.

When the police arrived, the protesters employed passive resistance techniques that included going limp, refusing to identify themselves, chaining themselves together, and covering their hands with maple syrup to impede the use of handcuffs. The protestors alleged the police dragged them out of the building by their elbows, using chokeholds, and lifted them off the floor by their wrists.

The protestors asserted that many demonstrators suffered excruciating pain that caused some to black out, and others suffered lasting physical damage as a result of their treatment. Thereafter, the protestors and Amnesty America, a self-described pro-life organization, filed a lawsuit. The Amnesty America court held that a grant of summary judgment for the town and its police chief was improper regarding the claim of negligent supervision. The court said the protestors' allegations were sufficient to create issues of fact as to the force used and its objective reasonableness under the circumstances.

According to the protestors, the police officers' excessive uses of force included lifting and pulling protestors by pressing their wrists back against their forearms in a way that caused lasting damage; throwing a protestor facedown to the ground; dragging a protestor facedown by his legs, causing a second-degree burn on his chest; placing a knee on a protestor's neck in order to tighten his handcuffs while he was lying facedown; and ramming a protestor's head into a wall at a high speed.

Because these allegations were significantly disputed, a jury was to decide, after a trial, the objective reasonableness of the force police used.

Careful Selection and Proper Control of Force Required
In conclusion, passive resistance strategies can create difficulties for law enforcement officials attempting to intervene in protests and demonstrations. Usually the severity of the crime being committed is minimal; nonviolent protestors generally pose no immediate threat to the safety of the officers or others; the protestors do not actively resist arrest; and the protestors invite arrest, rather than attempting to evade arrest by flight. For these reasons, when confronting passive resistance strategies during protests and demonstrations, law enforcement officials must carefully select use-of-force tactics and properly control their application. ■

1 See Forrester v. City of San Diego, 25 F.3d 804, 814 (9th Cir. 1994) (Kleinfeld, dissenting).
2 See 25 F.3d at 814.
3 25 F.3d at 814.
4 490 U.S. 386 (1989).
5 25 F.3d 804.
6 276 F.3d 1125 (9th Cir. 2002).
7 361 F.3d 113 (2nd Cir. 2004).


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From The Police Chief, vol. 72, no. 3, April 2005. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.








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