Taser X26 stun gun and two cartridges. Photo: Karlis Dambrans/Shutterstock.com

The U.S. Court of Appeals for the Second Circuit on Friday reinstated a jury verdict against a New York City Police Department lieutenant who used a taser on a man twice during a 2015 arrest, rejecting the officer's claim to qualified immunity in the civil lawsuit.

The decision, from a three-judge panel of the Manhattan-based appeals court, hinged on Lt.  Christopher Treubig's use, for the second time, of his taser to subdue Matthew Jones during an arrest at his apartment building in East Harlem.

The panel noted that the taser had already once been used on Jones, and he was lying prone on the ground, neither resisting nor posing a threat to the arresting officer. The charges against Jones, for possession of a controlled substance and resisting arrest, were later dropped.

"Because we conclude that it was clearly established at the time of the incident that an officer could not use significant force against an individual who was no longer resisting arrest and posing no threat to the safety of officers or other individuals … we reverse the judgment of the district court and remand for proceedings consistent with this opinion," the panel wrote.

A federal jury had found Treubig liable for excessive force, and awarded Jones $30,000 in punitive damages following a trial in May 2018. In a special verdict form, jurors agreed that Jones was not resisting arrest at the time, and the second taser cycle was not needed to gain control of Jones' arms to complete the arrest.

However, U.S. District Judge John G. Koeltl of the Southern District of New York vacated the jury verdict in a post-trial motion for judgment as a matter of law. According to Koeltl, there was nothing in the Second Circuit's case law to give the officer "fair warning" that the second use of his taser would violate Jones' rights under the Fourth and Fourteenth Amendments under the U.S. Constitution.

Following trial, Koeltl found that the recycling of the weapon was "reasonable" because Jones was rising from the floor, and the initial shock did not "subdue the plaintiff sufficiently to finish placing handcuffs on him." Although the jury had found that Jones was no longer resisting arrest, Koeltl said, Treubig's "mistaken view" that additional force was necessary was also reasonable and did not bar him from claiming qualified immunity.

The doctrine of qualified immunity is often invoked in cases involving allegations of police misconduct and generally shields government officials from lawsuits, except in cases where there was a violation of a "clearly established" statutory or constitutional right.

On appeal, the Second Circuit said that it was, in fact, "clearly established" since 2010 of Jones' arrest that the use of "significant force" against a suspect who is no longer resisting and poses no safety risk to officers.

In the particular context of Jones' arrest, the court found that "not only was there evidence in the record to support that Jones was no longer resisting arrest at the time of second tasing, but the jury made that specific factual finding." The judge's findings, the court said, improperly favored the officer's account of the arrest, and usurped the jury's role in determining whether Treubig's actions were reasonable.

"In light of the jury's findings and viewing the record on the remaining factual disputes in the light most favorable to Jones, we must assume for the qualified immunity analysis that Jones was subdued when Lt. Treubig re-cycled his taser, in that Jones was no longer resisting arrest or posing a threat to the officers or others, but rather lying face down on the ground with his arms spread," Judge Joseph F. Bianco of the U.S. Court of Appeals for the Second Circuit wrote on behalf of the court.

"No qualified immunity can thus exist on those facts," the judge said.

Bianco was joined in his ruling by Judge José A. Cabranes of the U.S. Court of Appeals for the Second Circuit and U.S. District Judge Christina Reiss of the District of Vermont, who sat by designation.

The New York City Law Department, which represented Treubig, emailed a statement late Friday afternoon: "Courts have acknowledged that they struggle with how to apply the complex doctrine of qualified immunity. The district court reviewed the jury responses in this case and granted qualified immunity, but the Court of Appeals disagreed. In its ruling, the Court of Appeals provided further guidance on how to pose qualified immunity questions to a jury for evaluation. We are reviewing our options."

An attorney for Jones did not respond Friday to a request for comment.

Jones was represented by Amir Ali of the Roderick & Solange MacArthur Justice Center in Washington, D.C., as well as David Zelman and Alexis Padilla, both solo practicioners in Brooklyn.

The case is captioned Jones v. Treubig.

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