Grounding and Your Justification for It

A on the ground with hand cuffs on

Posted By: publisher July 25, 2024

John G. Peters, Jr., Ph.D.; Darrell L. Ross, Ph.D.; and Michael Brave, Esq.

©2024. A.R.R.

The grounding of an individual is an expanding area in civil litigation, expected to persist for many years. The potential complexities involved when law enforcement officers ground a subject often necessitate a careful balance of legal, tactical and medical factors.

A Fourth Amendment seizure occurs either (1) by a Law Enforcement Officer’s (LEO’s) application of physical force, however slight, with intent to restrain, or (2) submission to a LEO’s “show of authority” to restrain the subject’s liberty. (California v. Hodari D. [US, 1991], Torres v. Madrid [US, 2021]). Grounding a person is different than the outcome of being “grounded.” Grounding, just like applications of restraints or spit    masks, is a seizure (use of force) which must be objectively reasonably justified. A definition of “grounding” is displacing a person’s balance by redirecting the person to the ground through physical (e.g., tripping, armbar takedown, tackling, throwing, etc.) or technological (e.g., firearm, Conducted Electrical Weapon [CEW]) means.

Before grounding an individual, LEOs must reasonably perceive a justified need to do so. Additionally, the method of grounding, considering the totality of circumstances as perceived by the LEO, must be objectively reasonable. LEOs sometimes focus on the outcome (grounded) and fail to recognize that they are required to justify the need for the grounding. The input (grounding) and the outcome (grounded) are two separate processes, each of which requires legal justification.

Grounding: Three Ds

Another popular definition of grounding includes the three Ds and is more specific than a generalized definition of the term. Grounding is the application of any physical action, force, technique, or intermediate weapon or device (including a canine) in response to a person’s reasonably perceived immediate threat; active resistance; flight, attempt to flee, or evade seizure; and other Graham/Kingsley nonexclusive factors (Graham v. Connor [US, 1989], Kingsley v. Hendrickson [US, 2015], Lombardo v. City of St. Louis, Missouri [US, 2021]) which decentralizes, displaces the balance and/or directs the person to the ground for purpose(s) of capture, control and/or facilitating restraint.

Grounding Rationales

There are many possible rationales for the grounding of individuals which include an LEO:

  • Neutralizing a person perceived as an immediate threat;
  • Defending against a combative and/or actively resistive person;
  • Defending another person, such as a fellow LEO or civilian;
  • Overcoming the person’s active resistance from being seized, or fleeing;
  • Attempting to accomplish other lawful objectives.

Grounding Considerations

As with any application of force, LEOs must consider the totality of circumstances as reasonably perceived when grounding the person. These include:

  • the LEO’s objective(s);
  • the LEO’s perception(s) of immediate threats posed by person;
  • Graham (nonexclusive) factors (4th Amendment);
  • Kingsley (nonexclusive) factors (14th Amendment);
  • Additional totality of the circumstances’ factors perceived;
  • Associated risks to the LEO;
  • Foreseeability of enhanced injuries from specific grounding: stationary grounding,
  • grounding surface, grounding under momentum, grounding while operating a vehicle, holding something, etc.; and/or
  • Additional factors based upon the LEO’s reasonably perceived totality of the circumstances.

Grounding Goals

Somewhat similar in nature to “Grounding Rationales” are the possible goals of grounding a person including:

  • To reduce potential dangers associated with the individual (e.g., using personal weapons such as hands, feet, biting, acquiring or attempting to use a weapon);
  • To gain a position of advantage over the individual who is threatening, actively resisting and/or struggling with LEOs;
  • To reposition the individual for physical control advantage;
  • To reposition the individual for a tactical advantage (i.e., easier to apply restraints);
  • To reposition the individual onto a potentially less hazardous surface and more solid platform (i.e., ground);
  • To reposition the individual to minimize flight risk; and
  • To foreseeably increase the safety of the person and/or LEOs by minimizing physical hands-on engagement.

Grounding Legal Concerns

LEO articulation for the need to ground a person is a key component in explaining the LEO’s perceived need for grounding. Examples include being able to explain the subject’s reasonably perceived immediate threat level, the totality of the circumstances confronting the LEO and the rationale for the grounding. Trainers should consider incorporating these examples into their training programs to assist LEOs in articulating the reasons for grounding the person. Clearly established law provides guidance into what LEOs need to reasonably justify grounding the person.

In Karels v. Storz (8th Circuit, 2018), it was held that LEOs cannot forcefully take down an individual who is a nonviolent, nonthreatening misdemeanant who was not resisting or attempting to flee from LEOs. Specifically, the Court noted the LEO’s alleged violent and uncontrolled takedown. The redirection of an individual to the ground is a use of force which involves the use of one or more force options. The force must be objectively reasonable.

In two Sixth Circuit cases, Williams v. Ingham (6th Circuit, 2021) and Bozung v. Rawson (6th Circuit, 2011), and a Fifth Circuit case, Tucker v. City of Shreveport (5th Circuit, 2021), LEOs were given qualified immunity because the grounded subjects had been actively resistive, given the totality of the circumstances. In Mosier v. Evans and Crockett County (6th Circuit, 2024), the court affirmed in part a granting of qualified immunity to a deputy who used a takedown technique on a person during the booking process. However, while the court affirmed the qualified immunity judgment of the district court, it reversed the dismissal of the plaintiff’s negligence claim against the officer in his personal capacity and remanded the case for further proceedings. (Co-author Peters was an expert witness in the case.)

Grounding Can Be Objectively Unreasonable Force

Techniques for the grounding of individuals are varied and numerous (e.g., tripping, armbar takedown, wrist lock, hip throw, CEW, electronic glove, baton, firearm, etc.). Remember, the use of one or more forceful takedown techniques will be based in part on the LEOs training, experience and comfort in using them, as well as department policy and training. The LEOs grounding decision is separate from choosing and then applying one or more takedown force options. By now, the distinctions between grounding and being grounded, or remaining grounded should be clear.

While LEOs may have articulable justification for grounding a person, that does not automatically make their force choices justifiable. One can articulate an objectively reasonable basis for redirecting an individual to the ground, but then apply too much force, thereby making it objectively unreasonable based upon the totality of the circumstances as perceived by the LEO. Remember, many times grounding places the individual on his/her stomach, in a prone position, which may trigger the requirement to comply with specific state laws (e.g., Cal. Gov’t Code § 7286.5), especially if the person suddenly dies (Non-Firearm Temporal Officer-Associated Death [NF TO-AD]).

Summary

An LEOs grounding of a person must be based upon more than, “I am arresting him and grounded him for increased control,” or “I had to take him or her to the ground for my safety.” LEOs are required to articulate why they reasonably perceived, based upon the totality of the circumstances, the justifications for redirecting the person to the ground. This is a separate and distinct decision from selecting the force options for redirecting an individual to the ground and then selecting restraint options after the person is grounded. Remember: The restraint methods and force used to apply restraints may be determined objectively reasonable by the court, but the LEO’s grounding decision or actions may not have been justified. Given the increasingly more restrictive criminal laws controlling LEOs’ actions being proposed or passed by some states which focus on LEOs use of grounding, positioning and potential negative restraint outcomes, coupled with the perceived decay of law enforcement by some media and the public, improved LEO decision-making is critical to tactical and courtroom survival.

Photo credit: Elvert Barnes

John G. Peters, Jr., Ph.D., is a regular contributor to Police and Security News. A former police administrator, deputy sheriff and patrol officer, he serves as President of the internationally recognized training firm, Institute for the Prevention of In-Custody Deaths, Inc. (IPICD). He also serves as Executive Director of the Americans for Effective Law Enforcement, Inc. (AELE). A judicially qualified expert witness, he has testified in international, federal and state courts.

Darrell L. Ross, Ph.D., served as Chair of the Department of Sociology, Anthropology, and Criminal Justice at Valdosta (GA) State University and is the Director for the Center for Applied Social Sciences until his retirement this year. An experienced expert witness, Dr. Ross has testified in federal and state courts. He is an experienced correctional officer and is a renowned social science researcher and author of several books focusing on criminal justice topics. He regularly provides presentations on force and arrest/custodial deaths.

Michael Brave, M.S., J.D. (attorney, consultant, trainer, former sworn officer/chief), has been retained as an expert in 250+ cases; has been involved in reviewing 650+ law enforcement temporal deaths; and has presented on force options and other subjects 1000+ times in the US and abroad. He serves as ILEETA’s (International Law Enforcement Educators’ and Trainers’ Association) Legal Advisor and as a Board Member.