‘Tasers have become a compliance tool in the hands of some police officers’
Alastair Logan on two recent federal appellate decisions in the US which look at claims of excessive force where unarmed suspects are involved. He argues that cases indicate learning opportunities for lawyers, police and trainers
Carden v. City of Knoxville (TN)(unpublished to date)
The first case began one night when a police officer in Tennessee stopped to offer assistance to two men tending to a flat tyre alongside an interstate highway. When the men declined help, the officer decided to check their license plate and got feedback suggesting the car was stolen.
When the officer stepped out of his vehicle to investigate further, one of the men ‘leaned down inside’ the stalled vehicle through the driver-side window as if, from the officer’s perspective, he ‘was reaching for a weapon.’ When he rose from the car, he ‘did not appear to have a weapon in his hands,’ according to the appellate decision. Matters escalated quickly nonetheless.
When the officer placed a hand on the suspect’s sleeve, the man swung two punches at the officer’s torso, then turned and ran. He ignored commands to stop, but the officer tackled him to the ground.
During ‘several seconds of active struggle,’ the two ‘exchanged punches’ and the suspect ‘repeatedly grabbed at’ the officer’s holstered sidearm without gaining control of it. The officer deployed his Taser into the suspect’s abdomen. When that proved ineffective, the officer unsuccessfully applied drive stuns to the suspect’s torso and neck and, in the process, ‘became tangled in the Taser wires [himself] and was shocked as a result.’ At one point, the suspect had the officer flat on his back and was straddling him, although he made no attempt to disarm the officer.
When the attacker finally stood up and turned to flee, the officer drew his handgun and fired—three shots from the ground, three more after he scrambled to his feet. From first physical contact to final firing took 35 seconds. The suspect died from six gunshot wounds, all to his back.
The deceased’s next of kin brought a legal action against the officer, alleging excessive force. The officer asked the federal district court to grant summary judgment in his favour on the ground of qualified immunity. Qualified immunity shields public officials from damages for civil liability so long as they did not violate an individual’s ‘clearly established’ statutory or constitutional rights. The immunity is available to state or federal employees, including law enforcement officers, who are performing their jobs.The court refused, ruling that the case should go to a jury.
‘[S]ome level of force [by the officer] was objectively reasonable under the circumstances,’ the court said, but ‘the use of deadly force was not.’ The officer ‘had no objective reason for believing that [his adversary] posed a serious threat while fleeing unarmed.’ Thus, ‘a reasonable jury could conclude [the suspect] was not a threat to anyone when he turned and began to flee.’
The law is ‘clearly established that when an individual is obviously not armed and is attempting to flee at the time he was shot, the use of deadly force is typically unreasonable under the circumstances,’ the court said.
The officer appealed to the 6th Circuit US Court of Appeals, which hears cases from States including Tennessee.
In a decision written by Judge John Marshall Rogers, a three-judge panel upheld the district court’s ruling.
In his appeal, the officer had argued that he had ‘probable cause to fear for his safety, even in the seconds after [the suspect] had turned to flee,’ because the assailant had grabbed at his holstered sidearm ‘several times during their struggle.’ The panel, however, was unpersuaded.
The reasonableness of the use of deadly force depends ‘primarily on objective assessment of the danger a suspect poses’ at the ‘particular moment’ lethal force is used, Rogers wrote. ‘Even if [the officer] had probable cause to fear for his safety during his struggle with [the suspect], it could well be that he lacked the same cause after the struggle had ended and [the suspect], still unarmed, had turned and begun to flee.’
Smith v. City of Troy (Ohio): No. 16-4719. Decided: November 01, 2017
This is also an excessive force case from the 6th Circuit. The case involved an unarmed man who suffered an epileptic seizure while driving in Ohio one cold February morning. He steered his car into a yard of a residential property and honked his horn ‘for help,’. He got out unsteadily and a neighbour called the police to report ‘suspicious activity.’
A sheriff’s deputy found the man sweating despite the cold weather and ‘grasping a waist-high chain-link fence, swaying back and forth’ with his pants ‘down around his knees.’ He was yelling out ‘Baby,’ and kept yelling without complying when the deputy asked him to return to his car to ‘discuss the incident.’
The deputy thought he ‘was under the influence of something’ and began to peel the man’s fingers from the fence. The man yanked his arm away and the deputy ‘took him to the ground with a leg sweep.’ The man landed facedown and the deputy fell on top of him.
As they wrestled, with the deputy trying to gain control of the subject’s arms to handcuff him, a municipal police officer arrived. With the man still struggling and with one of his arms now concealed beneath him, the municipal police officer drive-stunned him repeatedly to the back and neck. Not until two more officers arrived and helped hold him down was the man finally controlled and handcuffed.
The data recorder on the Taser showed it had been ‘deployed eight times, for a total of 48 seconds, during an encounter…that lasted less than two minutes.’ None of the officers ever informed the man that he was under arrest.
In his lawsuit, the man claimed that he told the deputy he was ‘sick and having a seizure’ early in the encounter. He said he didn’t remember struggling or being tasered, but he alleged that he ‘has post-traumatic stress disorder as a result of the incident.’
In this case, a federal district court (court of first instance) did grant summary judgment in the defendant officers’ favour on the ground of qualified immunity.
The officers had used justified ‘measured force’—not unconstitutional excessive force—in response to the plaintiff’s ‘defiance of their orders and reaching where the officers could not see his hands,’ the court ruled.
The district judge not only dismissed the plaintiff’s excessive force claim but also dismissed his allegations that the officers had violated his rights under the federal Americans with Disabilities Act and dismissed his state-law claims for ‘assault and battery and for intentional infliction of emotional distress.’
A three-judge appellate panel, however, saw the circumstances much differently when the plaintiff appealed.
As to the deputy who first dealt with him, the Court ruled that he violated the subject’s ‘right to be free from excessive force when he took [the plaintiff] to the ground with a leg sweep and landed on top of [him].’
The deputy ‘did not state, either in his incident report or in his deposition testimony, that he believed that [the unarmed man] presented a safety threat.’ He conceded that the plaintiff said he was sick and that he was holding the fence to maintain his balance.
It is well-established, the panel declared, that ‘a non-violent, non-resisting, or only passively resisting suspect who is not under arrest has a right to be free from an officer’s use of force…. ‘[P]assive’ resistance does not justify substantial use of force.’
The only reason the deputy knocked the man down was to handcuff him and restrain him forcibly. ‘Significantly,’ the judges said, ‘at no point during the entire episode was [the plaintiff] under arrest for any offense whatsoever….[T]he mere failure of a citizen—not arrested for any crime—to follow the officer’s commands does not give a law enforcement official authority to put the citizen in handcuffs.’
In short, the deputy ‘is not entitled to qualified immunity.’
As to the officer who tasered the subject, he did not warrant immunity either, the Court decided. It is ‘clearly established,’ the judges ruled, ‘that a police officer violates a suspect’s right to be free from excessive force by repeatedly tasing the suspect without giving him a chance to comply with orders.’
Applying the Taser for 48 seconds in less than two minutes did not give the man sufficient time to comply with commands to submit to handcuffing and thus was unreasonable, the Court said.
The appeals panel did sustain the district court’s ruling that the officers had not violated the plaintiff’s ADA rights. Passed by Congress in 1990, the Americans with Disabilities Act (ADA) is the nation’s first comprehensive civil rights law addressing the needs of people with disabilities, prohibiting discrimination in employment, public services, public accommodations, and telecommunications. To establish a violation, the judges explained, ‘the plaintiff must show that the defendants intentionally discriminated against him because of his disability,’ and there was no evidence of that in this case.
As a final blow to the defendants, the Court suggested that the district judge might want to ‘reconsider’ his decision to dismiss state claims against the officers, in light of his being overruled in the matters of excessive force.
These cases bring into sharp focus the limitations on the use of force.
Too often force is used because of failure by the victim to comply with instructions given by police officers. Tasers have become a compliance tool in the hands of some officers here and particularly in the US. The United Nations Committee Against Torture has described the use of Tasers as ‘provoking extreme pain’, saying it could constitute a form of torture and in certain cases cause death. Amnesty International has strenuously objected to their wider deployment, saying they should remain restricted to specially-trained officers, not handed to non-specialists after only two or three days’ training (here). Moreover there is a sinister attempt to persuade the public that Tasers are non-lethal. The US Department of Defense describes the current version used in the UK, the X26, as non-lethal on its website (here).
Tasers were introduced into British policing in 2003 as a non-lethal alternative for firearms officers (AFO’s) facing potentially dangerous suspects. Only when it became impossible to assert with any credibility let alone truth that the Taser firearm was non-lethal did the phrase ‘less lethal’ become the description of the weapon. The decision to include officers who were not AFOs was taken by the Home Office in 2007. The manufacturers, Taser International Inc (now renamed Axon Inc), maintained that the weapon was non-lethal for far longer – until 2009. Initially when use was extended no non AFOs in the UK they were authorised to officers provided they volunteered for and passed the training. There is pressure from police officers, senior and junior, from the Police Federation and from some Police and Crime Commissioners and MP’s to introduce tasers for all front-line officers.
Bearing in mind that 25% of the volunteers for taser training for the Met fail the course, there are serious implications emanating from any decision to provide all front-line officers with Tasers. The experience in the US (where over 1,000 deaths have been recorded from Taser use) is that the Taser quickly becomes a tool of compliance and punishment for non-compliance. Moreover, it shortcuts the decision-making process that an officer should use when deciding the level of response to the situation s/he faces with the result that non-violent means of resolving situations may become redundant as is increasingly obvious from taser use in the US. There are hundreds of videos on YouTube showing the terrible consequences of indiscriminate and lazy officer taser use mainly in the US. Most recently evidence is available that there is a greater likelihood of tasers being used in the UK on the mentally ill (here) and citizens from minority communities (here). There is concern about use on the elderly and recent outrage expressed about use on children (here).
The justification of countering terrorism, the most usual justification offered to rolling out tasers to all front-line officers, and increased militarisation of police equipment, must not be used to override the human rights and safety of the public and to change the basis of policing in this country – that it is by consent.