Martin A. Schwartz

In Part I (N.Y.L.J. Oct 30, 2018), we examined how Tasers operate, and the generally applicable Fourth Amendment and qualified immunity principles governing §1983 excessive force cases. The critical Fourth Amendment issue is whether, under the totality of the circumstances facing the officer, the officer's use of her Taser was reasonable. In this column we identify the relevant circumstances in the totality of the circumstances, analyze their significance, describe discernible patterns in the decisional law, and discuss significant recent §1983 Taser decisions.

Reasonableness Factors

The author's review of the reported §1983 Taser cases decided in approximately the past 15 years revealed that the courts consider a wide array of circumstances in determining the reasonableness of an officer's use of Taser force:

• Nature of suspect's crime? (e.g., traffic offense or low misdemeanor as opposed to violent felony).

• Was the suspect actively resisting arrest?

• Was the suspect fleeing?

• Was the suspect a threat to the safety of the officer(s) or others? On this issue consider a variety of factors, including:

 - the size of the suspect; - whether officer reasonably believed that the suspect had and brandished a weapon; - whether the suspect engaged in aggressive behavior; - the distance between the officer and the suspect; - the suspect's statements; - whether the suspect was securely in police custody; - whether the suspect appeared to be intoxicated or under the influence of illegal drugs; - whether the police were aware of the suspect's criminal past; - the number of officers on the scene.

• Whether the suspect disobeyed a police order (e.g., to “show his hands” or “get on the ground”), and, the related question, whether the suspect was given a reasonable opportunity to comply;

• Whether the officer warned the suspect that he or she would use the Taser;

• The suspect's location (specifically, was he elevated?);

• The specific Taser force imposed (was the Taser deployed in drive-stun mode or dart mode; the number of Taser strikes; the location of the Taser strike on the subject's body);

• Whether the officer had available an effective lesser type of force (e.g., Taser in drive-stun mode rather than dart mode, or fewer deployments, or “hand force”);

• Whether the suspect was suffering from mental illness or some other medical emergency;

• The nature and extent of the plaintiff's injuries.

Given this wide array of potentially relevant factors, and there may well be others, each case must be decided on the basis of its unique facts and circumstances. The Supreme Court has instructed that in excessive force cases “careful attention” must be paid to the facts of the particular case. Graham v. Connor, 490 U.S. at 396. Still, in Taser cases, as in other excessive force cases, some circumstances are more significant than others.

Courts in §1983 Taser cases consider the nature of the crime the suspect is believed to have committed. It is obviously relevant in the officer's assessment of the risk of harm to herself or others whether the suspect is charged with, say, a violent felony as opposed to a traffic infraction or non-violent misdemeanor. In a substantial number of the reported decisions, the plaintiff on whom a Taser was deployed had been initially stopped for a traffic infraction or relatively non-serious misdemeanor. See, e.g., Parker v. Gerrish, 547 F.3d 1(1st Cir. 2005) (driving while intoxicated). But this factor is not dispositive because encounters between police officers and private citizens that start small, as with a traffic stop, may and frequently do escalate into a serious confrontation between the officer and arrestee. In domestic disturbance cases, courts are very likely to give the officer the benefit of the doubt because of their potential volatility.

Whether the suspect was actively resisting arrest is a critical consideration. Active resistance means verbal hostility or physical resistance, as opposed to a mere failure to cooperate. See, e.g., Manners v. Cannella, 891 F.3d 959,974-75 (11th Cir. 2018) (Taser used to “restrain, subdue, and handcuff Manners, whose resistance was evident from the outset,” was reasonable; Taser use ended once Manners was subdued). One circuit court decision states that “[a] suspect's active resistance … marks the line between reasonable and unreasonable tasing … .” Hagans v. Franklin Cnty. Sheriff's Office, 695 F.3d 505, 509-11 (6th Cir. 2012). This seems far too simplistic. Clearly, even active resistance would not justify unlimited Taser use in dart mode aimed, for example, at the suspect's eyes. In other words, courts must consider the specific type of Taser force employed.

Whether the suspect was fleeing or otherwise attempting to evade arrest is a very significant factor. In Tennessee v. Garner, 471 U.S. 1 (1985), the Supreme Court held that the Fourth Amendment forbids police use of deadly force against all fleeing felons Under Garner, deadly force is a reasonable seizure only when the suspect poses a risk of serious physical harm to the officer(s) or others. But the Taser is non-deadly intermediate force, and decisions generally find that it is reasonable for a police officer to use a Taser on a fleeing suspect. See, e.g., Soto v. Gaudett, 862 F.3d 148 (2d Cir. 2017) (using Taser on fleeing suspect did not violate clearly established Fourth Amendment law; no precedent in 2008 “established that a suspect who was fleeing had a right not to be stopped by means of a taser”). Here, too, consideration must be given to the specific Taser force inflicted, that is, the Taser mode employed, the number of Taser strikes inflicted, and the resulting injuries.

It is difficult to generalize about the significance of a suspect's non-compliance with an officer's commands. While this, too, is clearly a relevant circumstance, not all commands are of equal importance. Compliance with some commands, such as “show your hands,” are likely to be more important than others, for example, “don't say another word.” Estate of Armstrong v. Village of Pinehurst, 810 F.3d 892, 904 (4th Cir.) (non-compliance with police directives not necessarily a continuing threat to officers or others), cert. denied, 137 S.Ct. 61 (2016). In the author's view, not every non-compliance with an officer's command justifies use of Taser force. In other words, the non-compliance must be considered in the context of the particular circumstances surrounding the confrontation between the officer and private citizen. The circuits are in conflict as to whether permissible versus impermissible Taser force may be distinguished on the basis of a suspect's “bare noncompliance” with an officer's order, as opposed to the “risk of danger” facing the officer. Estate of Armstrong, 810 F.3d at 909.

The most significant factor is whether the suspect poses an immediate physical threat to the officer or others. If the officer reasonably believed that the suspect was armed or had ready access to a weapon, or if the suspect physically or verbally threatened to harm the officer, the officer's deployment of her Taser will very likely be held reasonable. See, e.g., Frederick v. Motsinger, 873 F.3d 641 (8th Cir. 2017) (Taser deployed in attempt to disarm suspect who was acting erratically and holding a knife, and disobeyed repeated warnings to drop knife, was reasonable); Brossart v. Janke, 859 F.3d 616 (8th Cir. 2017) (using Taser on arrestee, who had threatened officers with violence and repeatedly failed to comply with their commands, was reasonable). At the other extreme, deployment of a Taser against non-fleeing, non-threatening, non-resisting, compliant suspects will almost always be found unreasonable. See, e.g., Thompson v. City of Monticello, 894 F.3d 993, 997-1000 (8th Cir. 2018) (law was clearly established that “intentionally tasering, without warning, an individual who has been stopped for a nonviolent misdemeanor offense and who is not resisting or fleeing arrest while his hands are visible violates that individual's Fourth Amendment right to be free from excessive force.”); Bonivert v. City of Clarkston, 883 F.3d 865 (9th Cir. 2018); Brand v. Casal, 877 F.3d 1253 (11th Cir. 2017); Darden v. City of Fort Worth, 866 F.3d 698 (5th Cir. 2017); Soto v. Gaudett, 862 F.3d 148 (2d Cir. 2017); Yates v. Terry, 817 F.3d 877 (4th Cir. 2016); Brown v. Chapman, 814 F.3d 447 (6th Cir. 2016). The courts sometimes refer to using Tasers in these circumstances as “gratuitous,” and they are plainly unreasonable.

The critical issue is whether using the Taser is reasonable under the circumstances existing at the time it was deployed. Thus, the fact that a suspect may have been belligerent, non-compliant and resistant during an early stage of an encounter would not likely justify subsequently deploying a Taser on a suspect when he is securely in police custody and ceased struggling and resisting. See, e.g., Wate v. Kubler, 839 F.3d 1012 (11th Cir. 2016). That, too, would be a “gratuitous” clearly unreasonable seizure.

Medical, Mental and Emotional Illness

Section 1983 Taser cases frequently involve multiple Taser deployments, and many decisions hold that even if an initial deployment of the Taser was reasonable, the later were not. See, e.g., Glasscox v. City of Argo, __F.3d__, 903 F.3d 1207 (11th Cir. Sept. 12, 2018); Pena v. City of Rio Grande City, 879 F.3d 613 (5th Cir. 2018); Jones v. Las Vegas Metropolitan Police Dep't, 873 F.3d 1123 (9th Cir. 2017); Meyers v. Baltimore Cnty, 713 F.3d 723 (4th Cir. 2013); Cyrus v. Town of Mukwonago, 624 F.3d 856 (7th Cir. 2015). Consider the Eleventh Circuit's recent decision in Glasscox. While driving his pickup truck, Bob Glasscox suffered a serious hypoglycemic episode, causing him to drive erratically at high speeds. Officer Moses pulled him over, but because of his medical condition Glasscox had difficulty complying with the officer's commands, e.g., “Get out of the car,” “Let's see your f*****g hands.” Glasscox was struggling to comply, at one point pathetically telling the officer “I'm sorry, man.” The officer deployed his Taser four times in dart mode. The wires latched into his chest made it still more difficult for him to comply. The circuit court held that even if Glasscox's resistance justified the officer's initial deployment of his Taser, continuing to deploy the Taser on him after he ceased resisting was plainly unreasonable.

In some of the §1983 Taser cases, the police deployed their Tasers after having been called to assist an individual who was suffering from a mental or emotional illness. Some decisions spell out that when determining whether to deploy a Taser the officer must take an individual's mental illness into account. See, e.g., Raell v. Hamilton, 870 F.3d 471 (6th Cir. 2017); Estate of Armstrong, 810 F.3d at 901-09. See also Crarener v. Schuster, 885 F.3d 1135 (8th Cir. 2018); Isayeva v. Sacramento Sheriff's Dep't, 872 F.3d 938 (9th Cir. 2017); Perea v. Baca, 817 F.3d 1198 (10th Cir. 2016); Champion v. Outlook Nashville, 380 F.3d 893, 904 (6th Cir. 2004) (“[T]he police were confronting an individual whom they knew to be mentally ill. The diminished capacity of an unarmed detainee must be taken into account when assessing the amount of force asserted.”).

In Estate of Armstrong v. Village of Pinehurst, supra, the Fourth Circuit found that Police Officer Gatling's use of a Taser on Ronald Armstrong, a mentally ill man, in order to prompt his return to a mental hospital violated the Fourth Amendment. “Gatling deployed the Taser—five separate times over a period of approximately two minutes. Rather than have its desired effect, the tasing actually increased Armstrong's resistance.” 810 F.3d at 897. Although Armstrong had been acting strangely, he was unarmed, “stationary, non-violent and surrounded by people willing to help him return to the hospital,” did not present any risk of harm to the officers, and was being seized only for his own protection. “[W]hen Officer Gatling deployed his Taser, Armstrong was a mentally ill man being seized for his own protection, was seated on the ground, was hugging a post to ensure his immobility, was surrounded by three police officers and two hospital guards, and had failed to submit to a lawful seizure for only 30 seconds.” 810 F.3d at 906.

Significantly, the court in Estate of Armstrong recognized that the problems posed and tactics employed in dealing with an unarmed emotionally ill person are usually different from those involved in police efforts to subdue an armed and dangerous criminal. Id. at 900 (quoting Bryan v. Mac Pherson, 630 F.3d at 829). Officers must take a subject's mental illness into account “when deciding when and how to use force.” Id. at 900 (citation omitted). Furthermore, “[w]here a seizure's sole justification is preventing harm to the subject of the seizure, the government has little interest in using force to effect the seizure.” Armstrong, 810 F.3d at 901. Although the circuit court in Armstrong held that the defendant officers were protected by qualified immunity because they did not violate clearly established Fourth Amendment law, it warned that law enforcement officers were now on notice that a Taser “may only be deployed when a police officer is confronted with an emergency that creates an immediate safety risk that is reasonably likely to be cured by using the taser.” 810 F.3d at 910.

Tasers are sometimes deployed against individuals in need of emergency medical treatment. The Sixth Circuit in Estate of Hill v. Miracle, 853 F.3d 306 (6th Cir. 2017) held that the Deputy Sheriff Miracle's deployment of his Taser in drive-stun mode at Corey Hill who, during a hypoglycemic episode, was violently resisting paramedics' attempts to intravenously administer dextrose to Hill in order to raise his blood-sugar level, was reasonable. The court noted: “persons suffering from low blood-sugar levels are often disoriented and unaware of their surroundings.” Id. After the “dextrose kicked in,” Hill “became an angel” and was very apologetic. The court stressed that it was not holding that deploying a Taser to gain control over a person suffering a medical emergency is always justified; the issue must be evaluated on a case-by-case basis. 853 F.32d at 315.

The court in Estate of Hill found that the three Graham v. Connor factors for evaluating the reasonableness of an officer's use of force—namely, severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting or evading arrest—usually are not relevant in medical emergency cases. The court articulated “a more tailored set of factors” to be considered in excessive force medical emergency cases:

(1) “Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under the circumstances, that posed an immediate threat of serious harm to himself or others?”;

(2) “Was some degree of force reasonably necessary to ameliorate the immediate threat?” and

(3) “Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)?” 853 F.3d at 314.

These factors should serve as a “non-exhaustive” “guide” to assist in evaluating the use of force in medical emergency cases. Id.

It is reasonable to expect that law enforcement officers will continue deploying their Tasers with great frequency. We should, therefore, also expect to see continued filings in the federal courts of large numbers of §1983 excessive force Taser cases, and ongoing development of this important area of §1983 law.

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.