Photo courtesy of Michael Schlosser.

Photo courtesy of Michael Schlosser.

Editor's note: View our related photo gallery, "Handling Passive Resisters."

Being able to identify the passive resister and understanding when the passive resister becomes an active resister is critical for knowing the proper use of force in a given situation. A passive resister can be defined as someone who refuses to comply with an officer while showing no physical indications of resistance.

When discussing the passive resister, the most common example in law enforcement is the "protester." Picture several protesters sitting in front of a building, obstructing the entrance, and requiring others to step over them to enter the building. They have been asked and then told to leave by proper management authorities. You begin by telling a protester that he is under arrest then ask him to stand up and place his hands behind his back. In response, the protester refuses and remains seated on the ground.

It is recommended that you then use the principle of mass to perform the arrest; which is a 2:1 ratio of officers to arrestee. You and your partner set context with the protester and give him options to comply. If the protester remains seated and refuses to comply, you then approach the arrestee with your partner, each taking an arm, pulling the arrestee onto his stomach, placing his hands behind his back, and then put handcuffs on the subject (checking for proper fit and double-locking the cuffs). In this scenario, the protester remains a true "passive resister," so you and your partner have to physically remove the arrestee from the scene and place him in the squad car.

If someone is a true passive resister, you simply need to do for the arrestee what he or will not do himself. If he stands, but refuses to put his hands behind his back, you and your partner do this for him, place him in handcuffs, and escort him to the squad car.

Given this, can you place a passive resister in a control hold? The answer is "yes." You should anticipate that an arrestee may become an active resister and therefore, when placing his hand behind his back, you can choose to use a rear wrist lock (or other common hold) as long as it does not cause any pain. This way, if the arrestee begins to resist, you are in a position to control and can use pain compliance through wrist manipulation, while ordering the arrestee to stop resisting.

Another example arises at a traffic stop when an arrestee refuses to exit the vehicle. Again, you (using the principle of mass) have the right to pull the arrestee from the vehicle. You and your partner each grab an arm and pull the passive resister from the vehicle and onto the ground. It should be noted that this does not give you the right to "slam" the arrestee onto the ground. That being said, there is always a possibility that, in this scenario, the arrestee could receive injuries as a result of being pulled from the vehicle. It is reasonable to believe that the arrestee could be injured and you would be free of any liability based on excessive use-of-force standards.

Once the arrestee is pulled from the vehicle, he is placed in the prone position. You place the arrestee's hands behind his back and handcuff him, again checking the handcuffs for proper fit and double-locking them. If the arrestee continues to be a passive resister, he may have to be physically removed from the area and placed in the squad car.

In all of these scenarios, I recommend making initial contact using wrist and arm control. This will enable you to control the arrestee should he begin to resist. From this controlling position, you have options available to you should the passive resister become an active resister. This includes several tactics, such as standing control holds and takedowns. Remember, it is usually the subject's hands or something in his hands that is most likely to injure you.

Pepper Spray Basics

Officers sometimes use O.C. Spray (pepper spray) for the passive resister, believing this is a minimal level of force.

There are court cases worth reading regarding the use of O.C. Spray on passive resisters, including the following two examples. Headwaters Forest Defense v. County of Humbolt involved police officers who used pepper spray on protesters who were passive resisters. The court found that a reasonable officer would consider the use of pepper spray against these non-violent protesters as excessive force and not necessary to subdue, remove or arrest the protestors. Martinez v. New Mexico Department of Public Safety involved a police officer who arrested a subject on a warrant. The suspect was handcuffed, but refused to get into the squad car. The arrestee was a passive resister and only verbally resistive. The court found that a reasonable officer would consider the use of pepper spray against an arrestee who was handcuffed and not physically resistant as excessive use of force.

Passive Resister to Active Resister

Keep in mind, it takes very little for a passive resister to become an active resister.

For example, if you grab hold of an arrestee's arms and the arrestee tenses his arms not allowing you to move them behind his back, he has become an active resister. If you grab hold of an arrestee's arms and the arrestee pulls away from your grip, he has become an active resister. If the arrestee begins to walk away from you after you have given him clear commands that he is under arrest and needs to place his hands behind his back, he has become an active resister. Once the arrestee becomes an active resister, there are many new options available to control and arrest.

Objectively Reasonable

As with all use-of-force encounters, the force officers use to effect an arrest must be based on the "objectively reasonable officer" criteria, considering the "officer's perception at that moment," and the "totality of the circumstances." (Graham v. Connor) The amount of force also "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake."

Verbal Commands

If a non-compliant arrestee is truly a passive resister, he will exhibit no resistive movement. He will not tense up, pull away, walk away, hold onto an object, etc.

The best tactics for a passive resister include, first and foremost, good verbal skills. Explaining to the arrestee what you need him to do and why will work wonders. If that does not work, explaining the consequences of not complying may also help.

Other tactics for the passive resister include officer presence, basic interview stance (hands up and weapon side back), control holds and escort positions (without implementing pain compliance. In other words, simply doing for the arrestee what he will not do for himself.

Remember, if a subject is truly a passive resister, you (using the principle of mass) will be able to place that subject in a position to be handcuffed and removed from the scene. By having the arrestee in a control hold position, you are prepared if the arrestee becomes an active resister.

Michael D. Schlosser, Ph.D., is director of the University of Illinois Police Training Institute.