Civil Rights and Civil Liberties

According to a recent Amnesty International report, over 250 people in this country have died after being struck by police Tasers since 2001. There is considerable debate about the role the Taser has played in these deaths.

The potentially lethal nature of Tasers, combined with their increasing use by law-enforcement authorities, assures that Tasers will become a staple of civil rights litigation. While the Supreme Court and the Second Circuit have yet to confront Tasers, a few other federal appeals courts have decided Taser challenges under the Fourth Amendment, Fourteenth Amendment, and Eighth Amendment involving, respectively, civilians, arrestees, and prisoners. The results so far are not encouraging.

Unreasonable Force Claims

One of the few federal appellate decisions addressing Fourth Amendment limits on the use of Tasers on those not in police custody is Draper v. Reynolds,³ a 2004 decision from the Eleventh Circuit. The plaintiff Stacy Draper was a truck driver who a Georgia county deputy sheriff pulled over because the truck’s license plate “was not appropriately illuminated under Georgia law.” After the officer approached from the passenger side of the truck and shone a flashlight into the cab, Mr. Draper became agitated, exited the truck, and ended up along with the deputy in view of the camera mounted on the dashboard of the deputy’s cruiser. The deputy then unholstered a Taser gun.

From this point forward, the two engaged in a running and heated exchange, with Mr. Draper at one point saying, “How bout you just go ahead and take me to fucking jail, then, man, you know, because I’m not going to kiss your damn ass because you’re a police officer.” The two continued to tussle verbally over the deputy’s demand that Mr. Draper produce various documents and, after a fifth request for the documents, the deputy “promptly discharged his Taser gun at [Mr.] Draper’s chest,” at which point the truck driver “fell to the ground out of the police camera’s view.”

Mr. Draper sued. In analyzing his claim challenging use of the Taser, the Eleventh Circuit recognized that, pursuant to the Supreme Court’s seminal decision in Graham v. Connor,⁴ the Fourth Amendment’s freedom from unreasonable searches and seizure encompasses “the plain right to be free from the use of excessive force in the course of an arrest.” Whether this right is violated requires a court to look at

Applying these standards, the Eleventh Circuit concluded that the deputy’s use of the Taser gun was not unconstitutional because it was “reasonably proportionate to the difficult, tense and uncertain situation” he faced. And in rejecting the Fourth Amendment claim, the court minimized the threat of Tasers: “Although being struck by a Taser gun is an unpleasant experience, the amount of force [the deputy] used – a single use of the Taser causing a one-time shocking – was reasonably proportionate to the need for force and did not inflict any serious injury.”

‘Wanton Pain and Suffering’

Beyond Fourth Amendment constraints on Taser use are those imposed by the Fourteenth Amendment’s Due Process Clause. The only reported case of a Court of Appeals addressing such a claim is Orem v. Rephann,⁵ decided by the Fourth Circuit last May.

The plaintiff Sonja Orem, a West Virginia woman, was arrested after reacting hostilely to having been served with an order of protection that barred her from contact with her son for six months. A police officer handcuffed her, placed her in the caged backseat of his cruiser, and then secured her with a foot restraint device, which was designed to prevent her from moving about. Notwithstanding this, Ms. Orem continued her tirade against the officer, banged her head against the cruiser’s window, and lurched about so as to rock the car. The deputy then pulled the car over to calm Ms. Orem and resecure the restraints when a deputy in a separate car arrived and approached the rear of the vehicle with his Taser drawn. Following a heated exchange between this deputy and Ms. Orem, the deputy “shocked [Ms.] Orem twice with a Taser gun – underneath her left breast and on her left inner thigh. [Ms.] Orem then became compliant and was transported . . . without further incident.”

In analyzing the excessive-force claim Ms. Orem asserted in a subsequent civil suit, the Fourth Circuit first stated that the claim did not arise under the Fourth Amendment since the court had earlier ruled that that amendment’s protections do not extend to arrestees or pretrial detainees. Rather, according to the court, such individuals are limited to claims under the Due Process Clause of the Fourteenth Amendment. And to succeed on such a claim, the plaintiff must show that the officer