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09-26-08, 11:21 AM #1
TASER court ruling 9/08/2008 (Federal)
A case involving the stun-drive Tasering of a handcuffed arrestee was decided this month by a federal Court of Appeals panel in Florida, with some instructive language regarding what’s permissible in the handling of passively resisting subjects by an officer working alone.
In assessing a deputy’s actions in delivering Taser shocks to an arrestee who would not get off the ground to be moved to a patrol car, the panel ruled 2-1 on Sept. 9 that:
• applying Taser prongs in an effort to motivate a nonviolent subject to stand up was not excessive force under Section 1983 of the federal Civil Rights Act;
• to conserve valuable police time and energy, “the government has an interest in arrests being completed efficiently and without waste of limited resources”;
• an officer’s call for backup “does not make the use of force before reinforcements arrive unreasonable” per se;
• indeed, a single officer confronting a non-compliant suspect “need not…wait idly for backup to arrive to complete an otherwise lawful arrest.”
With its ruling, written by Chief Judge J. L. Edmondson, the 11th circuit appellate court reversed a U.S. District Court decision that had judged the deputy guilty of “grossly disproportionate and unnecessary” force for applying the Taser in a pain-compliance mode.
“The language in this decision is outstanding in its importance to law enforcement,” says Wayne Schmidt, executive director of Americans for Effective Law Enforcement, the nonprofit organization that monitors police- and corrections-related cases and provides legal guidance through its popular training seminars. “This decision goes beyond mere commentary on Taser use.
“Single officers faced with uncooperative subjects are often uncertain about what constitutes reasonable force in their situations. This court shows a realistic understanding of the challenges they face.”
Like many appellate actions, this decision is unpublished, which means it is not binding on lower courts, Schmidt explained to Force Science News. “But I believe it will still be cited for the moral and persuasive authority of its reasonable arguments.”
The case grew out of a traffic stop by Deputy Jonathan Rackard of the Washington County (FL) S.O., initiated on a speeder named Jesse Buckley on a dark, rural 2-lane highway one March night nearly 5 years ago. The incident was captured on in-car video. YouTube - Buckley v. Haddock
The 23-year-old violator, “financially destitute and homeless,” became agitated and “began to sob” over getting a ticket. Despite repeated requests, he refused to sign the citation, as required by state law. “Arrest me,” he said.
Rackard did. Buckley submitted to handcuffing without resistance, wrists behind his back. But as Rackard started to walk him toward the patrol car, Buckley “dropped to the ground behind his car, crossed his legs, and continued to sob,” according to the appellate court’s recounting of the incident.
Rackard cautioned him about the danger of getting hit by traffic on the nearby roadway. “My life would be better if I was dead,” Buckley responded. Rackard asked him “several times” to stand up. Buckley wouldn’t. The deputy tried to lift the 6 ft., 180 lb. subject to his feet. Buckley went limp and wouldn’t get up. Rackard repeatedly warned him that unless he cooperated, a Taser would be used against him. “I don’t care any more,” Buckley shouted. “Tase me!”
After allowing further time for compliance, the deputy pressed the Taser against Buckley’s clothed back in stun-gun fashion and initiated a 5-second burst. Buckley slumped forward and moved around, causing Rackard to struggle to maintain contact with the prongs…but the suspect still would not get off the ground. A second Tasing resulted in the same continued resistance.
Rackard walked to his patrol car and radioed for backup. In the 5 minutes before another deputy pulled up, Rackard issued more commands for Buckley to stand, tried again unsuccessfully to lift him to his feet, and finally applied the Taser a third time after a plain warning. Nothing worked—until the backup arrived. Then Buckley “promptly relented” and was escorted to the patrol car “without incident.”
Buckley’s physical injuries consisted 16 “small burn marks,” with some scarring and keloid growth around some of them. (The total reflected the fact that Taser contact was broken by Buckley’s movement and had to be reestablished several times across the 3 zappings to complete the cycles.) Buckley also alleged emotional suffering, claiming that he “now finds it difficult to trust police officers and to ask for their assistance.”
Although he pleaded no contest to charges of refusing to sign the speeding ticket and to resisting arrest and “does not quarrel with his lawful conviction” on those counts, he filed suit against Rackard and Sheriff Bobby Haddock for violating his constitutional rights under the 4th Amendment.
LOWER COURT FINDING
The U.S. District Court for northern Florida denied Rackard’s motion for summary judgment on the basis of qualified immunity and held that he had used excessive force.
If the deputy had used his Taser just once, that “might arguably have been reasonable,” the lower court said, but the additional applications “were grossly disproportionate and unnecessary, especially given that the arrestee had been ‘fully secured’ and given that backup was en route.” If Rackard had “simply waited for backup, 2 officers could have lifted [Buckley] and carried him to the [patrol] car without any application of force,” the court declared.
In addition to the repeated Tasing, the court “placed considerable stress” on the fact that Buckley was handcuffed and resisted only passively. Indeed, it described the situation as “analogous” to the circumstances in a 2002 11th Circuit case, Lee v. Ferraro (284 F.3d 1188). The officer in that case had pulled over a young woman for a minor traffic violation, forced her out of her car, handcuffed her, and led her to the back of the vehicle where he spread her legs with his foot and slammed her head against the trunk lid, although she did not resist the officer at any time.
Like her, the District Court said, Buckley “posed no threat to the deputy or anyone else and…never actively resisted or attempted to evade arrest by flight.” Buckley’s attorney had relied heavily on Lee in arguing his case.
The Lee decision “does not control” the Buckley case, the Court of Appeals ruled emphatically in reversing the District Court’s judgment. Lee pertained where force that was “wholly uncalled for” was used against a subject who was “resisting arrest in no way.”
Buckley, in contrast, “did resist,” albeit passively, by dropping to the ground, refusing to comply with reasonable orders, ignoring warnings that he would be Tased, and refusing to stand when lifted. The differences are “easily distinguishable” and Lee “decides nothing” about the gamut of force options appropriate for dealing with arrestee intransigence.
The appellate court was not judging whether Rackard used the best option for carrying out the arrest—only whether his conduct was “reasonable in the constitutional sense,” the decision noted. Chief Judge Edmondson cited several compelling factors in Rackard’s support.
Safety was an issue. “[T]he incident occurred at night on the side of a highway with considerable passing traffic,” the decision pointed out. “[s]ome 14 vehicles passed nearby…during the approximately 8 minutes that the deputy and [Buckley] were both exposed on the roadside…not inside a car.”
The government’s “legitimate interest” in the safety of the deputy, the violator, “and even passing motorists” would have been “advanced by putting [Buckley] in the patrol car.”
Buckley’s resistance delayed completion of the arrest. Even though his refusal to sign the citation was relatively minor, “the government [has] a significant interest in enforcing the law on its own terms, rather than on terms set by the arrestee,” the decision declared. Arrests need to be “completed efficiently and without waste of limited resources: police time and energy that may be needed elsewhere at any moment.”
Although handcuffed, the suspect remained a potential threat. Buckley “refused repeatedly to comply with the most minimal of police instructions—to stand up and to walk to the patrol car.” That he “did not attack or menace the deputy does not shield [him] from the use of force, even if it might result in pain….
“Never was [he] fully secured until after the second officer arrived. [He] was not bound at the feet (so, he could both run and kick),” he remained at risk near the highway, and he continued his defiance, despite Rackard’s pleas and warnings. “An objectively reasonable police officer could rightly believe that force was therefore necessary to…complete the arrest.”
Availability of backup was not an issue. “The federal courts must not dictate…how the police should allocate their limited resources….No constitutional basis exists for requiring 2 or more officers to make routine arrests, even if deploying more officers might result in less force actually being used…. That an officer has requested more police assistance does not make the use of force before reinforcements arrive unreasonable….
“A single officer in the deputy’s situation, confronting a non-compliant arrestee like [Buckley], need not—as a matter of federal constitutional law—wait idly for backup to arrive to complete an otherwise lawful arrest….
“[O]fficers acting alone may not always use any and all force necessary to complete an arrest without assistance. If Deputy Rackard had used more severe techniques (beaten [Buckley’s] head with a club or shot him, for example), this case would be a different case.
“[But] Rackard only used moderate, non-lethal force; and he did so only after reasoning with [Buckley], then after trying to lift [him], and finally after repeatedly warning [him]—a warning given before each use of the Taser—that a Taser would be used….Even then, [Buckley’s] injury was not great….”
In conclusion, the Court noted: “We must always recall that police officers are making hard decisions under difficult circumstances and within severe time constraints. Such decisions are easy to criticize later….
“[But] this case is not one where a compliant arrestee was abused for no good reason….In the light of all the circumstances, therefore, we conclude that Deputy Rackard’s use of force was not constitutionally excessive.”
A heated, 17-page dissent was written by Judge Beverly Martin, a member of the appellate panel from Georgia. She argued that Rackard could have used “any number of less injurious, more effective and safer forms of pain-compliance techniques” and that his employment of “an electric prod” (the Taser) “repeatedly against a peaceful individual” was nothing other than “the infliction of gratuitous pain and injury” in violation of the 4th Amendment.
If you Google Deputy Rackard’s name, you’ll find more about the case on the Internet, including a number of commentators in the blogosphere who agree with Judge Martin’s dissent.
To read the full decision of the Court of Appeals, click here."When I'm driving along and I see a sign that says, CAUTION: SMALL CHILDREN AHEAD,
I slow down, and then it occurs to me, I'm not afraid of small children"!
09-26-08, 01:28 PM #2
Very good appellate decision. The offender's resistance was obvious, allbeit passive. Such resistance overcame the initial officer's ability to effect the arrest. Use of the Taser in drive mode is a pain compliance technique, near the level of wristlocks and armlocks, (some would say safer, too). Such can be reasonably utilized to overcome even passive resistance from a restrained offender, and this has been previously established.
Nowhere in the law does it say that force can only be utilized by the police to overcome violent aggression. At restricted levels, force can certainly be used to effect the arrest of a resistant offender, even if that resistance is not directed as violent aggression against the officer or another person.
This officer's actions were actually protective of the offender, in that he recognized his own limitations, maintained his own poise and emotional engagement, appeared to recognize the volatile emotional state of the offender, and the likelihood that if control was not maintained and time continued to pass, the offender reasonably could, (by the offender's own statements and demeanor) attempt to harm himself (run in front of traffic or flee), or escalate into violent aggression against the officer. We've seen other cases where the offender's emotional state deteriorated into anger turned outward. We've also seen way too many cases where impared drivers passing by have struck pedestrians and emergency vehicles on the roadside, with tragic results. Once restrained, the deputy became custodial over the offender, and his interests in making the arrest were not simply for the sake of the arrest, but also in the interest of the safety of the offender.
This decision is so detailed and definitive, it might prevent further appeal to USSC, however I'd like to see an ultimate USSC decision follow along this same rationale, such would be invaluable to law enforcement.
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09-26-08, 01:50 PM #3
The opposite decision was just made regarding a case in Tukwila, Washington.
Gotta love different courts, I guess.I'm your huckleberry...
Quemadmoeum gladis nemeinum occidit, occidentus telum est!
You can be the weapon, and the gun in your hand is a tool - or the gun is a weapon and you are the tool.
I was looking for a saint who was a devil of a lover,
but every girl I found was either one way or the other...
09-26-08, 04:40 PM #4
I don't understand how the judge could watch the video and just call it gratuitous violence. Now, if the officer had been cussing, not in control of his emotions, and generally just being a prick then I could see that, but he wasn't. He was polite (continually calling him sir, and Mr. Buckley), in complete control of his emotions (though you could hear a bit of frustration which is understandable), and gave numerous warnings before deploying the taser. If there was anything he could have done differently I think it would have been to actually deploy leads instead of just touching him with the taser but I think that the appellate court made the right decision!--"D.B.A.D." --Me
--Life's tough...it's tougher if you're stupid.
--"Genius may have its limitations, but stupidity is not thus handicapped." -Elbert Hubbard
09-26-08, 05:05 PM #5SI VIS PACEM PARA BELLUM-Ex-Sheriff Martin Howe to Will Kane in "High Noon"
"It's a great life. You risk your skin catching killers and the juries turn them loose so they can come back and shoot at you again. If your honest , your poor your whole life. And , In the end , you wind up dying all alone on some dirty street. For what? For nothing. For a tin star."
Far from being a handicap to command, compassion is the measure of it. For unless one values the lives of his soldiers and is tormented by their ordeals , he is unfit to command.
-General Omar Bradley, United States Army
09-28-08, 10:40 AM #6
Good decision by the court. Too bad it doesn't affect me though, my department doesn't even have tasers..."never bring paws to a gunfight" - Jenna
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