By Larry S. Gibson

The video is heart wrenching – police officers standing over five black females  lying face down on the ground, some with their hands cuffed behind their backs, the six year old girl crying and pleading to be put next to her teenage sister, who was struggling to keep her face up off the asphalt.   This recent incident in Aurora, Colorado, so reminiscent of images from slavery, involved a far too common police practice that must be curtained by law.

While recent police reforms have focused on banning the chokehold, it is equally urgent to curtail the police practice of forcing citizens to sprawl face down prone on the ground while being detained.  This practice is dehumanizing, dangerous, and most often unnecessary.

It must be remembered that the citizen being detained might not have committed any criminal offense.  That was the case in Aurora. The police had mistakenly stopped the wrong vehicle and were detaining five innocent people.  Their release with an apology did not make the harrowing experience any less traumatizing and emotionally damaging.

Larry S. Gibson (Courtesy Photo)

Human beings do not belong restrained on the ground like animals.  In addition to being degrading, it is dangerous.    Many people have medical and physical conditions that make it difficult, painful, or harmful to be on their stomachs.  A police officer would typically not know whether a citizen had such a condition.  More disturbing is that many police officers do not seem to care.

People have died as a result of being held on the ground by police. George Floyd was killed as police officers pinned him to the ground.  Eric Garner died because he could not breathe, as Staten Island policemen held him down.  That talented young man Elijah McClain tragically lost his life because he struggled against being held down by Aurora, Colorado police, after they had stopped him because he “looked suspicious.”

John Nevelle in North Carolina suffocated when he was kept on the ground as he too cried out that he could not breathe.  Nevelle was literally smothered by his own body weight.   The medical examiner called it “hypoxic ischemic brain injury due to cardiopulmonary arrest due to positional and compressional asphyxia during prone restraint.”

An increasingly compelling reason not to have people on the ground is that it is filthy down there. Virus droplets, spit, sweat, trash, and other harmful materials fall to the ground. Lying face down on the ground is risky in normal times. But, in the midst of a pandemic, it can be deadly.

Forcing people to the ground also tends to escalate police-citizen encounters. Incidents that could be calmly defused with some police patience become physical struggles, as frightened citizens react to aggressive actions by police officers demanding immediate compliance with their commands.

The citizen may not even know why the police officer is stopping them. Often, the citizen is confused as to what the officer is yelling at them to do.  Recently released police body camera footage shows that George Floyd was confused and did not understand why the police were acting so violently. Too many police officers regard a citizen’s merely asking questions as “resisting arrest” and justifying the use of force.

Tragedies like what happened to George Floyd, Eric Garner, Elijah McClain, John Nevelle, and those five females in Aurora explain why many people, especially African Americans, are afraid of the police and demand reforms.

Undoubtedly, there are situations where police are justified in using force to subdue and hold detainees on the ground.  But, that should the exception, not the norm.  Laws should be passed that read somewhat like this:

A police officer may require a person to lay prone on the ground only when it is objectively reasonable, necessary, and proportional to obtain compliance with a lawful command or to resolve a conflict. The police officer must consider any knowledge or lack of knowledge about the person’s medical or physical condition.

Police officers and police unions can be expected to oppose even this modest clarification of the law. Lately, a serious question has arisen as to whether the police profession tends to attract particularly insensitive and bossy people or whether there is something about police training or police work that extracts the humanity out of so many officers.  Whatever is the answer to that question, too many police officers seem to like their power to dominate citizens physically and will resist all efforts to curtail their prerogatives.

Therefore, federal, state, and local elected officials must enact laws to clarify that a police officer’s unreasonable order to a citizen to get down on the ground is an unlawful order.

Larry S. Gibson is a law professor and a former Associate Deputy Attorney General of the United States.

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