Tasers are a double-edged sword. In some circumstances, a police officer's deployment of her Taser may be a valuable alternative to the use of deadly force. Tasers, however, can inflict excruciating pain and serious injury, and even cause death.

During the past 15-20 years, large numbers of federal court §1983 complaints have been filed alleging that a police officer's deployment of her Taser constituted excessive force in violation of the plaintiff's Fourth Amendment rights. These filings have generated a very large body of decisional law evaluating the reasonableness of Taser force. The author has been carefully tracking, summarizing, and evaluating these decisions. Martin A. Schwartz, “Section 1983 Litigation: Claims and Defenses” §3.12[D][3][p] (Wolters Kluwer Law and Business 4th ed. 2018) (hereafter Claims and Defenses). Despite this vast body of decisions, “the objective reasonableness of the use of Tasers continues to pose difficult challenges to law enforcement agencies and courts alike … .” Estate of Armstrong v. Village of Pinehurst, 810 F.3d 892, 909 (4th Cir.), cert. denied, 137 S.Ct. 61(2016).

This two-part article will analyze the Fourth Amendment Taser decisional law. The first part describes how Tasers operate and reviews the general Fourth Amendment and qualified immunity principles governing §1983 excessive force claims. The second part will analyze the §1983 Fourth Amendment Taser decisional law.

Taser Deployment

“Taser” is an acronym for “Thomas A. Swift's Electric Rifle” featured in Victor Appleton's, Tom Swift and His Electric Rifle or Daring Adventures in Elephant Land (1911). Orsak v. Metro Airports Comm'n Airport Police, 675 F. Supp. 2d 944, 950 n.2 (D. Minn. 2009). The Taser, also referred to as a “stun gun,” has been described as “a non-lethal device commonly used to subdue individuals resisting arrest. It sends an electric pulse through the body of the victim causing immobilization, loss of balance and weakness. It leaves few, if any, marks on the victim.” Matta- Ballesteros v. Henman, 896 F. 2d 255, 256 n.2 (7th Cir. 1990) (citations omitted), cert. denied, 498 U.S. 878(1990). This definition is incomplete. For one thing, law enforcement officers deploy Tasers not only against individuals resisting arrest, but also during other encounters with criminal suspects, against pretrial detainees and prisoners, and even against individuals resisting needed mental health or other medical treatment who are not suspected of any criminal wrongdoing.

The quoted definition also fails to explain that a Taser can be operated in two different modes: (1) drive-stun mode, and (2) dart mode. A Taser in drive-stun mode delivers a powerful electrical shock to the victim, but it neither penetrates nor incapacitates the victim's central nervous system. Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (en banc). A Taser in dart mode, also referred to as “probe mode,” “uses compressed nitrogen to propel a pair of 'probes'-aluminum darts tipped with stainless steel barbs connected to the [Taser] by insulated wires-toward the target at a rate of over 160 feet per second. Upon striking the person the [Taser] delivers a 1,200 volt, low ampere electrical charge … . The electrical impulse [causes an intense burning feeling and] immediately overrides the victim's central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless.” Bryan v. MacPherson, 630 F.3d 805, 824 (9th Cir. 2010) (cleaned up); Mattos v. Agarano, 661 F.3d at 443. It is important that the attorneys for the parties and the courts spell out the mode in which the taser was deployed because a taser in dart mode is more intrusive, and capable of causing greater injury, than a taser in drive-stun mode. Abbot v. Sangamon Cnty, 705 F. 3d 706 (7th Cir. 2013).

Tasers today come equipped with data retrieval (a “data port”) and automatic video recording capabilities. The video recording feature does not mean that every tasing will produce a videotape of the incident. An officer, intentionally or accidentally, might, for example, not activate the recording feature, omit the audio, not record the entire incident, or delete a video that was recorded. Police officers are not constitutionally obligated to video record their uses of force, and police department “[p]olicies on how and when cameras should be used, and how and when by whom footage can be accessed, vary widely from region to region … . 'When is it activated? When is it turned off? How vigorously are those [police department] rules enforced? What happens to the video footage, how long is it retained, is it released to the public?'” Dana Goodyear, “Can the Manufacturers of Tasers Provide the Answer to Police Abuse?” New Yorker, at 30, 40 Aug. 27, 2018 (quoting Jay Stanley, ACLU technology researcher) (hereafter New Yorker article). There is persuasive authority that private citizens have a First Amendment right to videotape police encounters with private citizens, as long as doing so does not interfere with the officer's law enforcement functions. See, e.g., American Civil Liberties Union of Illinois v. Alvarez, 679 F. 3d 583 (7th Cir. 2012). Videotape evidence can play a powerful role in §1983 excessive force litigation, including in Taser cases. We will develop this point in conjunction with our discussion of the pertinent Fourth Amendment and qualified immunity principles.

Its manufacturer and police departments view the Taser as a viable alternative to deadly force with the potential to save many lives. (The leading manufacturer, Taser International, recently changed its name to Axon Enterprise. New Yorker article, at 37). When properly implemented the Taser can serve this valuable objective. But the cases show that police officers at times use their Tasers irresponsibly, in some cases inflicting excruciating pain, serious injury, or death without justification.

Make no mistake about it: The Taser is not an innocuous instrument. Although not considered deadly force (that is, force carrying a substantial risk of causing death or serious bodily injury), it also is not de minimis force. Lewis v. Downey, 581 F. 3d 467, 475 (7th Cir. 2007) (rejecting Magistrate's ruling that Taser force against prisoner in custody at county jail was de minimis force: “[T]he taser sent an electric shock through Lewis' body strong enough to cause him to fall from the bed and render him helpless. [O]ne need not have endured a taser to know the pain that must accompany it … .”). The courts describe the Taser as “intermediate,” “medium,” “serious,” or “significant” force. See, e.g., Estate of Armstrong v. Village of Pinehurst, 810 F.3d at 902 (Taser is designed to cause “'excruciating pain' and application can burn a subject's flesh”). In some circumstances, as when a suspect is at a high elevation, deployment of a Taser may be “lethal” force. Jackson v. County of San Bernardino, 191 F. Supp. 3d 1100, 1112-15 (C.D. Cal. 2011).

More important than the correct label is the reality that Tasers can and have caused serious injury and death. A 2017 Reuters study concluded that “[m]ore than 1,000 people in the U.S. have died after police stunned them with tasers, and the stun gun was ruled to be a cause or contributing factor in 153 of those deaths … . Nearly all of those deaths occurred since 2000, when tasers began gaining popularity with U.S. police.” “Reuters finds 1,005 deaths in U.S. involving tasers, largest accounting to date,” Reuters (Aug. 22, 2017).

Causation

Because an individual on whom a Taser was used may have suffered from one or more pre-existing medical conditions, or injuries, e.g., heart disease or neurological injury, it is not always easy to determine the role that Taser force played in a suspect's death. Common law proximate cause principles apply in §1983 actions, both on the issue of liability and compensatory damages. If the suspect had pre-existing medical conditions, the issue is: Were the Taser strikes a proximate cause of the plaintiff's injury or death? In several of the decisions reviewed by the author, the Taser victim died later that day or within a few days, for example, after being taken to a hospital. The causation issue is further complicated when, as is often the case, the officer deploys Taser force as well as other types of force, for example, pepper spray, mace or her service revolver. Medical and other expert testimony can be crucial in these cases.

In Darden v. City of Ft. Worth, 866 F. 3d 698, 703 (5th Cir. 2017), the Fifth Circuit in a §1983 excessive force case applied the common law tort “eggshell skull” doctrine under which the “tortfeasor takes the victim as he finds him,” meaning that the tortfeasor is liable for wrongful conduct that aggravated any pre-existing injuries, even if the tortfeasor was not aware of them. The circuit court ruled that although Darden had coronary artery and chronic lung disease, the officers' use of a Taser, forcing him on his stomach, and applying pressure to his back, caused his death. In other words, Jermaine Darden “would not have suffered a heart attack and died if the officers had not” used this force against him. Id.

While the great majority of Taser victims are arrestees and other criminal suspects, they are not the only individuals on whom police use Tasers. After responding to a relative or friend's call for help, police have used Tasers on individuals suffering from mental illness or other medical emergency, sometimes with tragic consequences. “Behind the fatalities is a sobering reality. Many who die are among societies vulnerable—unarmed, in psychological distress and seeking help.” Peter Escher, Jason Szeb, Tim Reid and Grant Smith, The Toll, Reuters, Aug. 22, 2017.

Section 1983 Fourth Amendment excessive force Taser claims are governed by the objective reasonableness standard of Graham v. Connor, 490 U.S. 386 (1989). (Detainee excessive force claims are governed by a due process objective reasonableness standard, Kingsley v. Hendrickson, 135 S. Ct.2460 (2015), while convicted prisoner excessive force claims are governed by the Eighth Amendment “malicious and sadistic for the purpose of causing harm” standard, Whitely v. Albers, 475 U.S. 312 (1986)). We are presently concerned only with Fourth Amendment Taser cases under the Graham standard.

Graham v. Connor resolved that the constitutionality of all government uses of force—deadly or not—during an arrest, investigatory stop, or other seizure, depends on whether, under the totality of the circumstances facing the officer, the use of force was objectively reasonable. Is this the type of force a reasonable officer could have employed? Under this objective standard the officer's subjective good faith or bad faith is irrelevant. The court in Graham detailed some of the likely circumstances courts should consider: (1) the severity of the crime the suspect is believed to have committed; (2) whether the suspect was actively resisting arrest or attempting to flee; and, most importantly (3) whether the suspect posed an immediate threat of physical harm to the officer or others.

Graham reasoned that because police officers often have to make split-second decisions concerning the use of force in tense, rapidly evolving circumstances, courts should not lightly second guess the judgment of the officer. Reasonableness, the court said, “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. The Graham standard is quite deferential to the judgment of the officer.

Qualified Immunity

That is not the whole story. Even if under Graham's deferential standard an officer is found to have employed unreasonable force, qualified immunity will protect the officer from liability so long as she did not violate clearly established federal law. Saucier v. Katz, 533 U.S. 194 (2001). Like Fourth Amendment cases generally, application of qualified immunity in Taser cases “'depends very much on the facts of each case.'” Estate of Hill v. Miracle, 853 F.3d 306, 316 (6th Cir.2017) (quoting Brosseau v. Haugen, 543 U.S. 193, 201 (2004)). There must be a close factual correspondence between the case at hand and the precedents the plaintiff claims clearly established the Fourth Amendment law. See, e.g., Kisela v. Hughes, 138 S.Ct. 1148 (2018) (per curiam); Sheehan v. San Francisco, 135 S.Ct. 1765 (2015).

Qualified immunity effectively gives the officer a second level of reasonableness protection, shielding the officer from liability as long as her use of force was “arguably” reasonable or, viewed slightly differently, at the “hazy border” between excessive and acceptable force. Saucier v. Katz, 533 U.S. at 206. In other words, the officer is protected by two doses of deference, one under the Fourth Amendment, and the second under qualified immunity. To prevail, a §1983 excessive force plaintiff will have to overcome this “double deference.”

When qualified immunity is raised as a defense to a §1983 claim, courts have discretion to either (1) rule on the constitutional merits and, if favorable to the plaintiff, then decide the clearly established federal law immunity issue or, alternatively, (2) bypass the Fourth Amendment merits and jump directly to the second step clearly established law immunity issue. Pearson v. Callahan, 555 U.S. 223 (2009). Some lower court §1983 Taser decisions have bypassed the Fourth Amendment merits and held for the officers based on qualified immunity because the officer's use of the Taser did not violate clearly established Fourth Amendment law, while other decisions have followed the two-step approach. Claims and Defenses, §3.12[D][3][p].

As in other types of §1983 excessive force cases, a defendant officer alleged to have unreasonably tased the plaintiff will very likely move for summary judgment on the basis of qualified immunity. The Supreme Court in Scott v. Harris, 550 U.S. 372 (2007) held that when there is a videotape of an encounter between the plaintiff and the officer, that is not doctored, altered, or distorted the incident, and the videotape “blatantly contradicts” the plaintiff's version of the incident, the court should reject plaintiff's version and grant summary judgment to the officer based upon the videotape. See Claims and Defenses, §3.12 [D][3][a]. Of course, in some cases videotape evidence may support a grant of summary judgment to the plaintiff, while in others it might show that there are disputed issues of material fact. Id. When disputed facts have to be resolved in order to determine the reasonableness of an officer's use of the Taser, the officer's summary judgment qualified immunity motion should be denied. See, e.g., Bennett v. Krakowski, 671 F.3d 553 (6th Cir. 2011); Cyrus v. Town of Muskwonago, 624 F.3d 856 (7th Cir. 2010); Greenway v. County of Nassau, 97 F. Supp. 3d 225 (E.D.N.Y. 2015).

In Part II, we will examine the particular circumstances courts consider in determining the reasonableness of an officer's deployment of her Taser, identify discernable patterns in the circuit court decisional law, and discuss significant recent §1983 Taser decisions.

Martin A. Schwartz, Professor Emeritus of Law, is the author of a multi-volume treatise on §1983 litigation published by Wolters Kluwer Law and Business.