OPR: 01 (R-9) DPS POLICY MANUAL Page 1 of 11 1.0 PURPOSE

OPR: 01 (R-9) DPS POLICY MANUAL Page 1 of 11

DEPARTMENT OF PUBLIC SAFETY

POLICIES & PROCEDURES

POLICY NUMBER

OPR: 57

EFFECTIVE

DATE:

10/07/2021

ORIGINAL

ISSUED

ON:

09/25/2017

SUBJECT: USE OF FORCE

REVISION NO: 9

1.0 PURPOSE

The purpose of this policy is to provide commissioned officers of the New Mexico

Department of Public Safety with guidelines for the use of force.

2.0 POLICY

It is the policy of the Department of Public Safety that commissioned personnel only use

force that is objectively reasonable under the totality of the circumstances to effectively

bring an incident under control while protecting the lives of the officer and others; and

while accomplishing lawful objectives, in accordance with statute, case law, the U.S.

Constitution, and the officer's training.

The Fourth Amendment of the US Constitution recognizes the right for police officers "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." - Graham v. Connor.

The officer "must balance the nature and quality of the intrusion on the individual's Fourth

Amendment interests against the importance of the governmental interests alleged to

justify the intrusion." - Graham v. Connor and Tennessee v. Garner

The proper application of force "requires careful attention to the facts and circumstances

of each particular case, including (1) the severity of the crime at issue, (2) whether the

suspect poses an immediate threat to the safety of the officers or others, and (3) whether

he is actively resisting arrest or attempting to evade arrest by flight." (The 3 Graham

Factors) - Graham v. Connor.

Additional considerations for use of force include whether the suspect is violent or

dangerous, the duration of the action, whether the action takes place in the context of

effecting an arrest, the possibility that the suspect may be armed, and the number of

persons with whom the police officers must contend at one time. - Sharrar v. Felsing

A seizure (use of force) occurs "when there is a governmental termination of freedom of

movement through means intentionally applied." - Brower v. County of Inyo

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“The Fourth Amendment does not require officers to use the least intrusive or even less

intrusive alternatives". The only test is whether what the police officers actually did was

reasonable.” - Plakas v. Drinski

“In justifying the particular intrusion, the police officer must be able to point to specific

and articulable facts which, taken together with rational inferences from those facts,

reasonably warrant that intrusion.” - Terry v. Ohio

"The 'reasonableness' of a particular use of force must be judged from the perspective of

a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." -

Graham v. Connor

"A detainee's mental health must be taken into account when considering the officer's use

of force." - Gianetti v. Stillwater

Officers should ensure that they do not engage in unreasonable actions that create the

need for the use of force because of tactical, strategic, and procedural errors that place

themselves or others in jeopardy. - Allen v. Muskogee, Ok.

It is "clearly established that officers may not continue to use force against a suspect who

is effectively subdued." - Perea v. Baca

An officer who fails to intervene to prevent another law enforcement official's use of

excessive force may face both criminal and civil liability. - Casey v. City of Federal Heights

Policy questions can be referred to the Use of Force Advisory Group or the Standards

Bureau Use of Force Subject Matter Expert.

3.0 APPLICABILITY

This policy applies to all commissioned personnel of the New Mexico Department of

Public Safety.

4.0 REFERENCES

A. Graham v. Connor, 490 U.S. 386 (US Supreme Court, 1989)

B. Tennessee vs. Garner 471 U.S. 1 (US Supreme Court, 1985)

C. Brower v. County of Inyo 489 U.S. 593 (US Supreme Court, 1989)

D. Plakas vs. Drinski , 19 F.3d, 1143 (7

Circ. 1994)

E. Terry v. Ohio, 392 U.S. 1 (1968)

F. Allen v. Muskogee, Ok, 119 F.3d 387 (10th Circ. 1997)

G. Gianetti v. Stillwater 06-6085 (10

Circ. 2007)

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H. Perea v. Baca 14-2214 (10

Circ. 2016)

I. Casey v. City of Federal Heights 06-1426 (10

Circ. 2007)

J. Sharrar v. Felsing 128 f.3d 810 (3

Circ.1997)

K. McDonald v Haskins 966 F .2d 292, 294 (7th Cir. 1992)

L. United States v. Cortez, 449 U.S. 411 (1981)

M. Armstrong v. Village of Pinehurst 15-1191 (4

Cir. 2016)

N. Escobedo v. Martin 11-2426 (7

Circ. 2012)

O. Dalrymple v. US 05-14375 (11

Circ. 2006)

P. Milan v. Bolin 15-1207 (8

Circ. 2015)

Q. Brown v. City of Colorado Springs 16-1206 (10

Circ. 2017)

R. Fisher v. City of Las Cruces 07-2294 (10

Circ. 2009)

S. Reavis v. Frost 19-7042 (10

Circ. 2020)

T. Scott v. Harris 550 U.S. 372 (US Supreme Court, 2007)

U. Procedural references are listed in the OPR 01a Procedure Manual

5.0 DEFINITIONS

A. Active Resistance – Physically evasive movements to defeat an officer's

attempt to control, including bracing, tensing, pulling away, running away, or

physically displaying an intent to avoid being taken into custody.

B. Area Denial – Intent to prevent a person from occupying or traversing a certain

area, whether that space is inside or outside.

C. Assaultive – An attempt to commit a battery upon the person of another. Any

unlawful act, threatening or menacing conduct, which causes another person to

reasonably believe that he is in danger of receiving an immediate battery (30-3-

1 NMSA 1978).

D. Canine or K-9 – A specially trained dog assigned to a DPS commissioned

officer.

E. Chemical Agents – Chemical agents designed and manufactured for law

enforcement purposes, which are approved and issued by the Department of

Public Safety.

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F. Deadly Force – The degree of force which is likely to cause death or great bodily

harm.

G. De Minimis Force – The use of such a small amount of force that it creates a

minimal risk of injury when used in an objectively reasonable manner.

H. Clearly Established Law – Statute or clearly established constitutional rights by

the New Mexico Court of Appeals, the New Mexico Supreme Court, the United

States Supreme Court, the 10

Circuit Court of Appeals, the United States

District Court for the District of New Mexico, or a right that is clearly established

by the "weight of authority from other courts." A "reasonable official would

understand that what he is doing violates that right." - Fisher v. City of Las

Cruces.

I. Excited Delirium – Excited Delirium is a descriptive phrase used by medical

researchers to describe the extreme end of a continuum of drug abuse effects,

which normally manifests itself in violent behavior of an individual, who is likely

to act in a bizarre and manic way.

J. Great Bodily Harm – An injury to a person which creates a high probability of

death; or which causes serious disfigurement; or which results in permanent or

protracted loss or impairment of the function of any member or organ of the body.

K. Imminent – Likely to occur at any time in the immediate future and often without

warning.

L. Intermediate Force – Force with a significant risk of injury, without causing great

bodily harm or death.

M. Less-Lethal Force – Any use of force other than that which is considered deadly

force. This includes the use of any weaponless physical force or use of the less-

lethal tool. Less lethal force is not intended or expected to cause death or great

bodily harm; but intended to control, restrain another, or to overcome resistance.

N. Less-Lethal Devices – A less-lethal device has the potential for causing tissue

damage but a low potential of resulting in great bodily harm or death when used

properly. Less-lethal devices include, but are not limited to chemical agents,

conducted energy weapons (CEW), department-approved expandable baton,

straight baton, canine, beanbag shotguns, or other tools that use less-lethal

munitions, weapons of opportunity, or vehicles.

O. Less-Lethal Munitions – Munitions including, but not limited to bean bag

rounds, rubber pellet rounds, rubber slug rounds, wooden baton rounds, foam

projectiles, stinger balls, and pepper balls, which are designed to incapacitate

without causing death or great bodily harm.

P. Objectively Reasonable – A reasonable amount of force used to bring a

situation or resistive subject under control, given the totality of the circumstances,

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and considering that officers are often forced to make split-second decisions in

situations that are tense, uncertain, and rapidly evolving.

The officer has a reasonable belief, based on articulable facts, that the subject

displays the intent, ability, means, and opportunity to be actively resistant,

assaultive, or otherwise endanger someone.

Reasonableness “must be assessed in light of the particular circumstances

against the standard of whether a man of reasonable caution is warranted in

believing that the action taken was appropriate.” - Terry v. Ohio. Pp. 21-22

Q. Passive Resistance – Non-compliant behavior that offers no form of active

physical resistance, including but not limited to verbal resistance,

unresponsiveness to directions, sitting, laying down, or allowing the body to go

limp.

R. Probable Cause – Facts or circumstances that would lead a reasonable person

to believe a crime has been committed, is being committed, or is about to be

committed.

"In dealing with probable cause, . . . as the very name implies, we deal with

probabilities. These are not technical; they are the factual and practical

considerations of everyday life on which reasonable and prudent men, not legal

technicians, act." - Brinegar v. United States, 338 U.S. 160, 175, cited in Terry v.

Ohio.

S. Reasonable Suspicion – Individualized suspicion that would lead a reasonable

person to suspect that a crime has been committed, is being committed, or is

about to be committed. The degree of suspicion of criminal activity that justifies

an investigative detention

T. Show of Force – Presentation of any tool, either less-lethal or lethal, used with

intent to bring a situation or resistive subject under control. A show of force is not

a use of force, but it must be objectively reasonable under the totality of the

circumstances, considering that officers are often forced to make split-second

decisions in situations that are tense, uncertain, and rapidly evolving. - McDonald

v. Haskins.

U. Totality of Circumstances – Assessment of the whole picture that gives the

officer an individualized suspicion, based on all the circumstances. The officer

draws inferences and makes deductions - inferences and deductions that might

well elude an untrained person, to make an assessment that the individual being

stopped is engaged in wrongdoing. - US v Cortez

6.0 USING FORCE

A. Refer to the OPR 01a Procedural Manual, for guidance on techniques for the

application of force, equipment procedures, and reporting procedures.

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B. General

1. Any use of force must be objectively reasonable under the totality of the

circumstances.

2. Officers are allowed to use objectively reasonable force when the officer has

probable cause to make an arrest.

3. Officers are allowed to use objectively reasonable force when the officer has

reasonable suspicion to justify investigative detention.

4. If feasible, the officer should give a warning prior to using force.

5. The officer evaluates the suspect's response to applications of force and

determines what other objectively reasonable actions are required under the

totality of the circumstances.

6. Duty to Intervene: If the officer has time to do so, an officer shall intervene

to prevent another law enforcement officer's use of excessive force.

C. De-escalation

1. Prior to using force, when safe and reasonable, the officer should use de-

escalation techniques to slow down and stabilize a situation, to allow for

more time, for more options, and for more resources to resolve the situation.

D. Less Lethal Force

1. Less lethal force includes two types of force:

a. Any force that is greater than de minimis force, which includes tools and

techniques intended to control or restrain another, or to overcome

resistance, without a significant risk of injury.

b. Intermediate Force, which includes tools or techniques that have a

significant risk of causing injury but are not intended to cause death or

great bodily harm.

2. Less Lethal force may be used on subjects who are passively resisting,

actively resisting, or assaultive, if the use of force is objectively reasonable

under the totality of the circumstances.

E. Intermediate Use of Force

1. Officers may use intermediate force to secure compliance and ultimately gain

control of a subject who is assaultive; or who is actively resisting - when that

active resistance includes an immediate safety risk (immediate danger) to the

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officer, to the subject, or to another individual, if that use of force is objectively

reasonable under the totality of the circumstances.

2. A less lethal tool of intermediate force, like a TASER (CEW), is a reasonable

force option on someone who is actively resisting "only when deployed in

response to a situation in which a reasonable officer would perceive some

immediate danger (immediate safety risk) that could be mitigated by using

the taser." - Armstrong v. Village of Pinehurst

a. A mental health concern (mental illness), by itself, is not an immediate

safety risk.

3. The use of any less-lethal tool of intermediate force, including CEW's, batons,

chemical agents, or less-lethal munitions, must be objectively reasonable

under the totality of the circumstances, if used on a handcuffed prisoner who

is assaultive, or actively resisting with an immediate safety risk (immediate

danger) to the officer, to the prisoner, or to another individual.

F. Handcuffing

1. Handcuffing itself is a de minimis use of force.

2. Handcuffing is a level of force greater than de minimus force if the officer

uses them for additional leverage or pain compliance.

3. Handcuffing is unreasonable use of force if, "officers employed greater force

than would have been reasonably necessary under the circumstances." -

Fisher v. City of Las Cruces.

4. Refer to OPR 33 – Arrests for departmental procedures on handcuffing.

5. "Unduly tight handcuffing can constitute excessive force where a plaintiff

alleges some actual injury from the handcuffing and alleges that an officer

ignored a plaintiff's timely complaints (or was otherwise made aware) that

the handcuffs were too tight․" - Fisher v. City of Las Cruces

G. Control Holds and Weaponless Techniques

1. Escort positions by themselves are de minimus uses of force unless the

amount of resistance from the subject requires the officer to utilize additional

force, such as additional leverage or pain compliance.

2. Less lethal force includes weaponless techniques that utilize leverage or

pain compliance to control, restrain, or overcome resistance, and that force

must be objectively reasonable under the totality of circumstances.

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3. Any weaponless techniques used on subjects who are passively resisting,

handcuffed, or otherwise restrained, must be objectively reasonable under

the totality of circumstances.

4. Subjects who are restrained/handcuffed and who may be actively resisting

or assaultive may require application(s) of physical force. The level and type

of force used must be objectively reasonable under the totality of

circumstances.

5. Weaponless techniques that involve blunt trauma, such as elbow strikes,

knee strikes, hand strikes, and foot strikes, are intermediate force.

a. Intentionally applied weaponless techniques that involve blunt trauma

to the head, neck, spine, and groin have an elevated risk of great bodily

harm; and must be objectively reasonable under the totality of

circumstances.

H. Conducted Energy Weapons (CEW-TASER)

1. CEW's are an intermediate force.

2. CEW use with elevated risk factors for injury or great bodily harm must be

objectively reasonable under the totality of circumstances.

I. Chemical Agents

1. Chemical agents, including pepper spray, are intermediate force.

J. Baton strikes

1. The baton strike to a subject's limbs is an intermediate use of force.

2. Intentional baton strikes above the shoulders, to the torso along the spine,

and to the groin could be considered deadly force, due to the risk of great

bodily harm.

K. Less Lethal Munitions

1. Less lethal munitions are intermediate force.

2. Use of Less Lethal Munitions has a greater risk of death or great bodily harm

than other less-lethal devices, even when properly deployed. The use of

these munitions must be objectively reasonable under the totality of the

circumstances.

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3. Less lethal munitions that use projectiles may be deadly force when

intentionally aimed at the head, upper chest, or spine unless the specific

munition is designed to allow for its use on any of these areas.

L. Less Lethal Force: Vehicle-To-Vehicle Contact

1. Any intentional vehicle-to-vehicle contact, including but not limited to the

P.I.T. Maneuver, is an intermediate force due to the risk of causing injury

when the officer has a reasonable belief that the vehicle-to-vehicle contact

will not cause death or great bodily harm.

2. Any intentional vehicle-to-vehicle contact must be objectively reasonable

under the totality of circumstances.

3. Refer to DPS policy OPR: 05 Hollow Spike Belt, Stop Sticks, The P.I.T.

Maneuver and Other Forcible Stops, and OPR: 08 Vehicular Pursuits for

further information. - Scott v. Harris, Brower v. County of Inyo

M. Specialized Intermediate Force Tools and Munitions

1. Specialized intermediate force tools and munitions include K9s, Noise Flash

Diversionary Devices (NFDD's or "Flash Bangs"), and chemical agents for

area denial.

2. Chemical agents used for area denial are a use of intermediate force. -

Escobedo v. Martin, Derlymple v. US

3. Less lethal devices including Noise Flash Diversionary Devices (NFDD'S or

"Flashbangs") are intermediate force, when used (1) for situations with a

dangerous person, (2) at or near a dangerous point of entry or contact, (3)

when the officer has ensured no innocent individuals are close to the

flashbang location, (4) and devices for fire prevention are on hand. - Milan v.

Bolin

4. Tools that contain explosives and that may create projectiles from the use

of those explosives, are also considered to be an intermediate force when

used for area denial, and in locations where there is an intent to take

someone into custody. - Brown v. City of Colorado Springs

N. Weapons of Opportunity

1. If a confrontation suddenly escalates and an officer has no time to draw

and/or use a department-approved weapon to defend the officer’s self or

others, the officer may;

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a. Use an empty hand technique not included in department-approved

training, for defense or control, provided that the force is objectively

reasonable under the totality of the circumstances.

b. Use any object or tool at hand for defense or control, provided that the

use of force is objectively reasonable under the totality of the

circumstances.

O. Use of Deadly Force

1. The Department respects the value of human life. Officers are authorized to

use deadly force to stop the action when they have probable cause to:

a. Protect their own lives and the lives of others from what is reasonably

believed to be an imminent threat of death or great bodily harm, or

b. To prevent the escape of a fleeing felon who the officer has probable

cause to believe poses an imminent threat of death or great bodily harm

to the officer or others

2. In evaluating probable cause to use deadly force, including shooting at a

motor vehicle, the officer must determine if there is no threat, an immediate

deadly threat, or if that the threat has passed; because "circumstances may

change within seconds eliminating the justification for deadly force." "Deadly

Force is unreasonable when a reasonable officer would have perceived that

the threat had passed." - Reavis v. Frost

3. The following force options are deadly force:

a. Intentional discharge of firearms

b. Any intentional vehicle-to-vehicle contact, including but not limited to

the P.I.T. Maneuver and Class C Roadblocks, when the officer has a

reasonable belief that there is a risk of death or great bodily harm; Refer

to DPS policy OPR: 05 Hollow Spike Belt, Stop Sticks, The P.I.T.

Maneuver and Other Forcible Stops, and OPR: 08 Vehicular Pursuits

for further information. - Scott v. Harris, Brower v. County of Inyo

c. Less Lethal tools and weapons of opportunity used with the intent to

cause death or great bodily harm.

d. A vascular neck restraint is the temporary disruption of blood flow to the

brain for incapacitation. The use of a vascular neck restraint or any

other type of chokehold is a weapon of opportunity and must meet this

policy’s guidelines for the use of deadly force.

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7.0 USE OF FORCE ADVISORY GROUP

A. Mission:

1. The Use of Force Advisory Group is a resource that advises the department

on questionable force incidents, other matters related to use of force policy

and procedures, clearly established use of force case law, and use of force

related training - including but not limited to defensive tactics, firearms, and

patrol operations. The Advisory Group answers to the Office of the Chief.

2. The Advisory Group reviews questionable force incidents brought to the

group by the Office of the Chief, the Standards Bureau Commander,

Investigations Bureau Major, or the Standards Bureau Use of Force Subject

Matter Expert.

3. Refer to the OPR 01a Procedural Manual for the Advisory Group’s mission,

duties, and selection criteria.

8.0 ATTACHMENTS

NONE

9.0 APPROVAL

APPROVED BY: ____s/__Jason R. Bowie______ DATE: __10-07-21______

DPS Cabinet Secretary