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Submit to arrest to avoid force, law professor advises

| Thursday, Dec. 4, 2014, 10:57 p.m.
Guy Wathen | Trib Total Media
Protestors march down Liberty Ave. during a protest against police brutality on Thursday, Dec. 4, 2014.

There's one clear lesson from recent headlines about police officers' use of force, experts say:

Don't resist arrest.

“If something happens to you on the street with an officer, you submit and you challenge them in court,” said Duquesne University law professor Wesley Oliver. “You have no right to disobey a police officer's order, even if (that order) is unlawful. You have a right to sue them, but on the street, the officer has the final call.”

Any kind of resistance to arrest, even passive resistance such as going limp on the ground, may give the officer cause to use force.

“You have the right not to be tortured or assaulted, if you submit,” said Oliver. “If you don't submit, they have the right to subdue you.”

People who train police officers say there is a “continuum” for use of force when someone resists arrest.

“Cadets are taught to respond with the necessary level of force to overcome the resistance that's given to them or displayed to them, and not be unreasonable in that response,” said Dennis Marsili, program coordinator of the Criminal Justice Training Center at Indiana University of Pennsylvania. “Your force level should be equal to or one step higher than the resistance that's given; if it's any higher than that one step, then it's unreasonable.”

Allegheny County Superintendent Charles Moffatt said that “depending on what occurs, you can jump from zero to top if you need to. If someone holds a gun to you, you don't have to say, ‘Hey, I'm here!' ”

A Staten Island grand jury Wednesday decided not to indict white New York City police Officer Daniel Pantaleo in the alleged chokehold death of Eric Garner, an unarmed black man stopped on suspicion of selling loose, untaxed cigarettes.

That has sparked protests across the country, including in Pittsburgh.

“The reason all these people are upset is because they don't understand what they saw. People don't understand what they're looking at,” said Thomas Aveni, a retired officer and executive director of the Police Policy Studies Council.

Aveni, who has been a police trainer in deadly force and non-deadly force for more than 30 years, said the police officer did not use a chokehold on Garner, but rather a “lateral vascular neck restraint” or LVNR.

The difference? “People can't talk when they are being choked,” Aveni said.

Officers employing a LVNR put their elbow directly in front of the Adam's apple but do not compress the airway, Aveni said. Instead, the technique compresses the carotid arteries going to the brain on either side of the neck, diminishing blood flow to the brain and resulting in “just a few seconds of unconsciousness.”

“LVNR has a very good and safe record,” Aveni said.

“If you hear Garner say he can't breathe, there was nothing impeding his ability to talk,” Aveni said. “He really wasn't being choked — that's another indication I got from the video.”

So if a chokehold did not kill Garner — which the medical examiner ruled was a contributing factor — what did?

“I think the chest compression was the most lethal thing these officers did,” Aveni said. “With a morbidly obese man, if you're on his shoulder blades or back, when you start pressing downward, with his body weight, it causes that individual that much more (difficulty in breathing).

“That's really what he's complaining about when he says, ‘I can't breathe.' ”

Based on his experience, Aveni said, “prolonged chest compression, inability to breathe with a guy who has asthma already, that's going to greatly elevate the likelihood of a cardiac arrest.”

Such continua of use of force are not law; they are training conventions, and those conventions differ from place to place.

Marsili said the kind of neck restraints Aveni spoke of are “only to be used in deadly force situations.” And for him, he said, the technique is different: “You would have the suspect's arm between your arm and the neck, so you don't compress both arteries. You would only inhibit the one side. That's only used in a deadly force situation.”

The law, Oliver said, offers little guidance.

Most decisions about an officer's use of force are determined by juries rather than judges, Oliver said, and only judges can set legal precedent.

“We developed our system of police regulation during Prohibition, when the biggest concern was the search for alcohol,” Oliver said. “We have a much better sense of when an officer can search my trunk than when an officer's allowed to shoot me. And there's something wrong with that.”

Margaret Harding is a staff writer for Trib Total Media. Contact her at 412-380-8519 or mharding@tribweb.com.

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