It should be quite evident today that equipment provided to police for their protection is being improperly used. Most have heard of the misuse of guns by and against police. Problems created in the use of other devices to restrain, such as handcuffs, are not so easily recognized.
An article in AELE Monthly Law Journal states: “The use of handcuffs is a use of restraint and force, subject to the constitutional objective reasonableness standard of the Fourth Amendment.” Physical restraints can be traumatic.
One need only tune into one of the cable channels to witness the overuse of handcuffs. The seriousness of restraining people, particularly in handcuffs, has never been fully appreciated by government officials, especially the courts.
The founders of the nation are the exception. Of all the amendments to the United States Constitution, one of the first to be added pertains to the restraint of individuals. Amendment Four states, in part, that persons are not to be subject to unreasonable seizures by government. That means restraints.
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It necessarily follows that reasonable seizures are allowed. The problem is that the term “reasonable” forces an officer to make a subjective judgment at the time of arrest or stop.
This is not an attack on the people who risk their lives every day to protect citizens from criminals. It is a challenge to government to do better.
While state legislatures and agencies have the responsibility to establish rules for police, the federal government can become involved when police actions violate individual rights. The United States Supreme Court has held that police can use force against people, if it is not excessive. Courts often disagree on what constitutes excessive force. Many police just handcuff everybody.
The “objective reasonableness” standard has been criticized as not providing clear guidelines to officers, the courts and citizens. Flagrant abuses in the use of handcuffs have occurred as a result. The most flagrant is the handcuffing of suspects who have been shot and are lying on the ground.
This is commonplace in New York City, the New York Times reported. Other abuses include the handcuffing of a dentist whose hands were injured so severely he had to leave the profession; a physician who suffered permanent nerve damage; and apartment occupants who were handcuffed for two hours while a search of their residence was being conducted.
These are just a few of many cases. These practices are outrageous and unacceptable. A suggested statute to fix the problem:
The use of handcuffs, or other devices that restrict the movement of arms and legs, is prohibited, with the following exceptions that exclude persons who are incapacitated:
(1) The suspect upon whom a device is placed agrees to the placement in writing, and such person has been informed that he or she has the right to refuse permission;
(2) The suspect upon whom a device is placed is being arrested for the commission of a crime involving violence, and a complainant’s assertion of violence by a suspect is corroborated;
(3) The suspect upon whom a device is placed has been convicted of a crime involving violence;
(4) The suspect upon whom a device is placed is resisting arrest, has threatened or is threatening to use violence, or is exhibiting conduct that involves violence;
(5) The suspect upon whom a device is placed has on his or her person or within his or her reach a concealed deadly weapon and the person cannot produce a concealed weapons license.
Gerald W. Shaw of Ewing is an attorney.