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Response to resistance and de-escalation

Summary of the topic

Penal Code section 9.51 answers whether force was justified. This topic covers what Texas law wraps around that answer: how resistance is defined, what training an officer must have, what an officer must do when a colleague goes too far, what must happen once a person is hurt, and how a use of force is reported. The rules are spread across the Penal Code, the Occupations Code and the Code of Criminal Procedure, so the useful skill is matching each duty to the code that carries it.

Section 9.51(a) justifies force when and to the degree the officer reasonably believes it immediately necessary, and the words to the degree are the basis for matching the response to the resistance. Section 38.03 defines resisting arrest, search or transportation as intentionally preventing or obstructing a person the actor knows is a peace officer from effecting an arrest, search or transportation by using force. It is no defense that the arrest or search was unlawful. Section 38.04 separately makes it an offense to flee from a peace officer who is lawfully attempting to arrest or detain the person, so flight without force is evading and not resisting.

Article 2B.0251 of the Code of Criminal Procedure imposes a duty to intervene when another officer uses force that exceeds what is reasonable and meets the statute's conditions. An officer who witnesses excessive force must promptly make a detailed report and deliver it to the reporting officer's supervisor. Article 2B.0252 bars an intentional choke hold, carotid artery hold or similar neck restraint unless it is necessary to prevent serious bodily injury to or the death of the officer or another person. Article 2B.0301 requires an officer who encounters an injured person to request emergency medical services and to provide first aid to the extent of the officer's skill and training, unless doing so would expose someone to a risk of bodily injury.

Section 1701.253(j) of the Occupations Code requires a 40-hour statewide program on de-escalation and crisis intervention techniques for interacting with persons with mental impairments, and the requirement may not be met by an online course. Section 1701.253(n) requires a separate program on de-escalation techniques for the public, including techniques for limiting force that results in bodily injury. Under section 1701.352(b), each agency must provide each officer with a commission-approved training program at least once every 48 months.

Sections 1701.269 and 1701.270 require model policies on neck restraints, the duty to intervene and the duty to render aid, and each agency must adopt a policy on those topics. Article 2A.206 governs reporting of an officer-involved injury or death, defined as an incident in which an officer discharges a firearm causing injury or death. The agency must submit the report not later than the 30th day after the incident, and the attorney general posts it within five days of receipt.

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