Point of Law: Using the Baton

Your agency's use-of-force policy needs to specify when the baton can be used, the legal justification for its use, and what to do afterward.

Within the Daigle Law Group Policy Center policies concerning non-deadly force related to impact weapons, we have looked at a number of issues that you need to keep in mind when applying this force option. Each non-deadly force option comes with its own set of conditions, needs for medical attention, and report writing requirements.

Let’s look at a few of the specific concerns–both operational and constitutional—that come with the use of impact weapons. 

Legal Justification

Your ability to employ good communication and de-escalation techniques may save your life and mitigate the need for use of weapons. So when reasonable and safe to do so, officers need to give verbal commands prior to using impact weapons like the baton and give the subject an opportunity to comply. 

However, despite our best efforts to calm the situation, there will be times when we need to resort to our baton to employ a reasonable level of force to protect ourselves or a citizen from the imminent use of force or to control the situation. The use of the impact weapon is appropriate when a subject offers active resistance. Active resistance is defined as: 

The actions of a subject who makes physically evasive movements to interfere with an officer’s attempt to control that subject. These movements may include bracing, tensing, pulling away, or pushing. 

Impact weapons should only be used in a manner consistent with the training you have received through your agency and in conformance with these policies and procedures.

Where to Strike

It is important that you use your baton in a manner that minimizes harm to sensitive bodily areas. Your agency’s directive provides an outline of preferred striking areas and areas that should be avoided. 

Preferred targets include the meaty areas of the limbs—arms and legs, upper back and buttocks areas. These areas provide the best opportunities for minimal trauma and the least opportunity for long-term injuries. 

Areas to be avoided because of the possibility of serious injury to the subject include: 

• Any area of the head/ neck 

• Genital area 

• Spinal area 

• Solar plexus or celiac plexus (sternum, abdominal and cardiac trauma) 

Strikes to these areas should only be employed when the circumstances justify using such force because of imminent danger of serious bodily harm and the officer is acting in self-defense of imminent serious bodily harm or death. 

Like our applications of TASER and OC, each application of the baton needs to stand on its own merits and be supported by actively resisting behavior. We have all seen the videos where the officers stand around the suspect and each takes their swings. Nothing will turn community support away from your department faster than this type of activity.  

Finally, be sure to continue your verbal commands during the altercation and give the suspect an opportunity to comply. I know it may be easier said than done when you are in the middle of the fight, but it is important that witnesses hear your commands to the suspect to stop fighting. 

Post Application Procedures 

Once compliance is obtained take control of the suspect and handcuff the suspect. Officers not needed to control the suspect should move back away from the suspect.  

It is also important that we “self-police” in these types of situations. Remember, you can be liable for the unconstitutional conduct of your colleague, if you had a reasonable opportunity to prevent constitutional harm but failed to do so. If one of your colleagues is attempting to get in a few “last licks” for “good measure,” you need to stand up and move that officer away from the situation. 

An officer needs to check the suspect for injuries and a supervisor should be on the scene. If there is any question concerning the need for medical attention—call for an ambulance or rescue to examine the suspect. Be sure to document the examination and the names of the attending medical personnel. 

The on-scene supervisor should be checking the suspect for injuries as well and photographing any suspected injuries or contact areas. Rest assured the suspect will have his or her pictures when they file the civil suit. 

The baton may be the oldest tool in your use-of-force toolbox but there are still situations where the baton is the appropriate tool given the circumstances of the suspect’s active resistance.

Understand, however, that the use of the baton is one that will draw a great deal of attention. Expect that cell phone cameras will start rolling when the batons come out and be prepared to support your use of the baton. Your agency training and directives will help you make the right decision. 

Eric Daigle is founder of Daigle Law Group, LLC, a firm that specializes in law enforcement operations. A former Connecticut State Police officer, Daigle focuses on civil rights actions, including police misconduct litigation. He is a legal advisor for police agencies across the country. www.daiglelawgroup.com 

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