Monthly Law Journal Article: Civil Liability for Use of Tasers, stunguns, and other electronic control devices - Part I: 4th Amendment claims for excessive force. 2007 (3) AELE Mo. L. J. 101
     Monthly Law Journal Article: Civil Liability for Use of Tasers, stunguns, and other electronic control devices - Part II: Use Against Juveniles, and Inadequate Training Claims, 2007 (4) AELE Mo. L. J. 101.
     Monthly Law Journal Article: Use of Force and the Hollywood Factor, by Jeffry L. Johnson, 2007 (4) AELE Mo. L.J. 501.
     Monthly Law Journal Article: Civil Liability for Use of Tasers, stunguns, and other electronic control devices--Part III: Use Against Detainees and Disabled or Disturbed Persons, 2007 (5) AELE Mo. L.J. 101.
     Monthly Law Journal Article: Electronic Control Devices: Liability and Training Aspects, by Edmund Zigmund, 2007 (5) AELE Mo. L.J. 501.
    Monthly Law Journal Article: Taser® Electronic Control Devices (ECDs): An “Intermediate” Use of Force?, 2010 (2) AELE Mo. L. J. 101.
     Monthly Law Journal Article: Force and the Fatigue Threshold: The Point of No Return, 2010 (6) AELE Mo. L. J. 501.
     Monthly Law Journal Article: Second Circuit Panel Allows Stun Mode to Gain Compliance of Chained Protestors, 2011 (5) AELE Mo. L. J. 501.
     Monthly Law Journal Article: Ninth Circuit finds that the use of a TASER® constituted excessive force: Two cases involved noncompliant subjects, 2011 (12) AELE Mo. L. J. 101
     An officer was entitled to qualified immunity for using a Taser in dart mode to stop a suspect fleeing from the scene of a jaywalking violation, because the appeals court could not say that a fleeing non-violent misdemeanant had a clearly established right not to be Tasered in July of 2008. The court also reasoned that the use of the Taser was not so "inherently cruel" as to be objectively unreasonable per se. Cockrell v. City of Cincinnati, #10-4605, 2012 U.S. App. Lexis 3787, 2012 Fed. App. 216 (Unpub. 6th Cir.).
     Officers were not entitled to qualified immunity for using a Taser to compel a drunken suspect to come down from a tree where he had fled. The suspect had put down his rifle before climbing the tree and was allegedly not a threat to the officers and had his hands up at the time they used the Taser to make him fall. He subsequently suffered paraplegia as a result of the incident. Harper v. Perkins, #11-14416, 2012 U.S. App. Lexis 4064 (Unpub. 11th Cir.).
     A deputy and an officer were both entitled to qualified immunity for using Tasers against a man who ran from his house towards a police vehicle, shouting that the deputy was a demon who had to be killed. He continued to resist even when lying on the ground and would not allow his arms to be placed behind him for handcuffing. Tasers were used against him once in dart mode and then multiple times in stun mode. The suspect died following the incident. The defendants' conduct was not clearly unlawful, and the suspect's conduct constituted assault and battery on an officer accompanying threats to kill the deputy. An expert witness in the case explained that "The [Taser] was classified as an electro-muscular disruptor when used to fire small probes attached to the weapon with thin wires because, in that mode, it overrides the central nervous system and makes muscle control impossible. The Taser can also be used as a pain compliance weapon in what is called the 'drive stun' mode. In the 'drive stun' mode, the weapon is pressed against a person's body and the trigger is pulled resulting in pain (a burning sensation) but the “drive stun” mode does not disrupt muscle control." Hoyt v. Cooks, #11-10771, 2012 U.S. App. Lexis 3899 (11th Cir.).
     Police investigating a possible car theft in progress encountered a man fitting the suspect's description walking with a companion. The men began running away when they saw the officers, and an officer tackled the suspect, using his Taser to subdue him because he was allegedly resisting being handcuffed. In light of the suspect's claim that he was not resisting, but was then cooperative, there was a factual issue as to whether the use of the Taser was justified or excessive. The officers did not claim that the suspect took aggressive action against them or assaulted them, and no weapon was found on him. Bennett v. Krakowski, #10-2455, 2011 U.S. App. Lexis 23039 (6th Cir.).
     Police responded to a 911 call concerning an intoxicated man threatening to kill himself with a pocket knife. He ignored their orders to drop the knife, instead holding it to his throat. The officers used a beanbag shot gun to subdue and disarm him. When he stepped away, and moved towards his parents' house, they shot and killed him. A federal appeals court ruled that the use of the beanbag shotgun may have been excessive, noting that the officers had the option of using the less extreme force of a Taser, but did not do so. The court stated that it was not aware of any published cases holding it reasonable to use a significant amount of force to try to stop someone from attempting suicide." The subsequent gunfire may also have been excessive. Summary judgment for the defendants was reversed, and further proceedings were ordered on the excessive force claims. Glenn v. Washington County, #10-35636, 661 F.3d 460 (9th Cir. 2011).
     An officer did not use excessive force in using his Taser on the friend of a woman he was arresting who ignored orders to stop moving towards him. His subsequent use of the Taser against a man in the crowd who said to others that the officers were "overreacting" while calling them "motherfuckers," however, could be found to be unjustified, even if the remarks, in the context, constituted disorderly conduct. "Disorderly conduct is not a serious offense [and] resisting arrest without force does not connote a level of dangerousness that would justify a greater use of force." The officer, therefore, was not entitled to qualified immunity, based on this man's version of the incident. Fils v. City of Aventura, #09-10696, 647 F.3d 1272 (11th) Cir. 2011).
     A sheriff's deputy grabbed the wrist of a motorist who had not been wearing his seatbelt, and who attempted to flee on foot when ordered to stop. When the man broke away, the deputy used a Taser on him, subsequently also using pepper spray and placing his knee on the man's back. In a lawsuit for excessive use of force, a federal appeals court upheld a jury's decision to award only a dollar in nominal damages. It rejected the plaintiff's argument that the pain of being tasered should always be enough to support a more substantial amount of compensatory damages. The court noted that the jury might have reasonably believed that the use of the Taser was justifiable in this case, and that only the subsequent force used was excessive. Frizzell v. Szabo, #10-2955, 647 F.3d 698 (7th Cir. 2011).
     A police officer who claimed that she intended to use her Taser on a handcuffed detainee, but instead shot him in the chest with a semiautomatic pistol, was not entitled to qualified immunity in a lawsuit over his death. At the time of the shooting, the detainee was kicking a police vehicle's rear door from the inside. The appeals court noted that the officer had had prior difficulty in drawing the correct weapon. A "jury might question," the court stated, "the reasonableness of choosing to send 1,200 volts of electricity through a person when the alleged concern is for that person's safety." A jury could also possibly find the officer's mistake reasonable, but the trial court should not have reached that conclusion on summary judgment. Torres v. City of Madera, #09-16573, 2011 U.S. App. Lexis 17459 (9th Cir.)
     An officer who fatally shot a man running away who was only suspected of a misdemeanor failure to pay child support was not entitled to summary judgment. Even though the officer claimed he intended to use his Taser rather than his gun, a jury could view the shooting as objectively unreasonable. The decedent posed no threat of death or serious bodily injury to anyone. As for the officer's alleged confusion between his gun and his Taser, the appeals court noted that the Taser was holstered approximately a foot lower than his gun was, had no thumb safety, unlike his gun, and only weighed half as much as his gun. Because of these facts, the officer should have realized he was holding and shooting his gun. Henry v. Purnell, #08-7433, (4th Cir. en banc).
     Officers went to a house to arrest a man under three warrants for various minor offenses. Once at the house, the officers found the back door open, and no furniture inside or any other indication that anyone was living there, but did find the suspect unclothed in a bathroom. While dressing, the suspect suddenly lunged towards a second-story window, and an officer used her Taser on him. He was hit by the Taser's two probes, but continued through the window and subsequently died of his injuries. A federal appeals court rejected both unlawful entry and excessive force claims. From the appearance of the house, the officers had an objectively reasonable basis to believe the house was abandoned, so they had no duty to knock and announce before entering. The officer was entitled to use force such as the Taser when it appeared that the suspect was making an active attempt to evade arrest. McKenney v. Harrison, #10-1407, 2011 U.S. App. Lexis 6248 (8th Cir.).
     There was a genuine issue as to whether a motorist was complying with police orders before he was tasered. While the officers stated that he disobeyed orders to show his hands or get out of his truck, the plaintiff arrestee contended that he had complied with orders to place his truck in park, turn off the truck's engine, and place his hands in the air, and claimed that the tasering continued even after he was handcuffed and subdued. If the plaintiff's version of the incident were true, there was an excessive use of force. No viable claim existed, however, for supervisory liability. Bell v. Kansas City Police Dept., #10-1870, 635 F.3d 346 (8th Cir. 2011).
     A man suffering from bipolar disorder and schizophrenia, and known to local police from past psychotic but noncriminal episodes was reported missing by his family. In a delusional state, he wandered into a partially built new home wearing only a bathrobe. The owner was present and summoned police, who used a taser to try to subdue the delusional man, who would not comply with their commands. It was disputed how many times the man was tasered, but he ended up face down on a gravel driveway. Once he was handcuffed, officers turned him over and discovered that he was not breathing. He then died. A federal appeals court reversed summary judgment for the defendant officers, noting that it was still disputed how many times the officers discharged the taser, and to what extent the decedent attempted to evade the officers. Cyrus v. Town of Mukwonago, #09-2331, 624 F.3d 856 (7th Cir. 2010).
     Officers' use of tasers against protestor arrestees who had chained themselves to a several-hundred-pound barrel drum and refused to free themselves was objectively reasonable even though their arrest was for relatively minor crimes of trespass and resisting arrest. The plaintiffs admitted that officers at the scene considered and attempted several alternate means of removing them from the property before resorting to use of their tasers, that the officers expressly warned them that they would be tased and that it would be painful, and that the officers gave them another opportunity to release themselves from the barrel after this warning. Finally, both plaintiffs were given opportunities again to release themselves from the barrel prior to the subsequent uses of the tasers. Crowell v. Kirkpatrick, #09-4100, 2010 U.S. App. Lexis 23518 (Unpub.2nd Cir.).
     Police responded to a call from a woman's husband, reporting that she had stormed out of the house after a domestic dispute, having tried to put him in a closet, and had taken a kitchen knife with her. She was later observed walking back towards the home, and did not appear to be holding the knife. One of the officers tried to approach her, but she veered off the walkway towards the front door, walking quickly, but not running. The officer discharged his Taser into her back without warning when her feet were on the front steps of her home, and she went rigid, spun around, and struck her head on the concrete steps, suffering a traumatic brain injury. While Tasers may not constitute deadly force, the appeals court noted, their use clearly "seizes" a suspect in an abrupt and violent manner. The officer was not entitled to qualified immunity for using it against the woman who allegedly did not pose an immediate threat to the officer or anyone else. The appeals court held that a reasonable jury could conclude that, at the time the officer used the Taser, the plaintiff was not "fleeing," but only quickly walking to her own home, where the officer could easily arrest her if he wanted to. Cavanaugh v. Woods Cross City, #10-4017, 2010 U.S. App. Lexis 2290 (10th Cir.).
     A Florida officer believed that he saw cannabis in a man's mouth, and that the suspect was resisting him by chewing and swallowing what he believed was evidence of a crime. The officer therefore arrested him for violation of a state statute prohibiting obstruction or resistance of an officer performing his legal duty. Under the circumstances, the officer had arguable probable cause to make the arrest and was therefore entitled to qualified immunity on false arrest and malicious prosecution claims. The appeals court also held that the defendant officers were entitled to qualified immunity on an excessive force claim, as one officer's efforts to stop the arrestee from swallowing the supposed cannabis, and the other officer's use of a Taser against the arrestee did not violate the plaintiff's clearly established rights. The officers believed the suspect was attempting to destroy evidence, and that he was resisting orders and attempting to flee or resist arrest by jumping in his car. It would "not be clear to every reasonable officer that the force used was excessive under the circumstances." German v. Sosa, #10-10443, 2010 U.S. App. Lexis 21026 (Unpub. 11th Cir.).
     An arrestee fled on foot when a deputy attempted to arrest him with a warrant. The deputy gave chase, and mistakenly drew his gun when he actually intended to draw his Taser to apprehend the fleeing suspect. He shot the arrestee in the elbow. The arrestee filed an excessive force lawsuit, but the trial court held that the deputy's mistake in drawing his firearm rather than his Taser under these circumstances was a reasonable one, so that he was entitled to summary judgment. The appeals court held that the trial court erred in its analysis by focusing solely on the adequacy of the deputy's weapons training instead of looking at the totality of the circumstances the deputy faced. The appeals court ruled that the deputy could not have been on notice that confusing his firearm for his Taser was clearly established as an excessive use of force because there was no prior caselaw to provide him fair warning on the issue. Summary judgment was overturned, however, on state law claims. Henry v. Purnell, #08-7433, 2010 U.S. App. Lexis 19823 (4th Cir.).
     Update: As previously reported, in Bryan v. McPherson, #08-55622, 2009 U.S. App. Lexis 28413 (9th Cir.), the court held that, if an officer, as alleged, used a Taser against an unarmed, non-fleeing motorist, stopped for a seat belt violation, who posed no immediate threat to the officer, the force used was excessive. The court characterized use of the Taser as non-lethal force, but also as an "intermediate or medium, though not insignificant" use of force, requiring justification by a "strong governmental interest" compelling the use of such force, in light of the pain and incapacitation it causes, and the possibility of injury from resulting falls. Revisiting the case, the court has now determined, overturning its prior decision in part, that the officer was entitled to qualified immunity from liability, as the principles announced in the case were not previously "clearly established." Other than the individual grant of qualified immunity to this officer, the decision remains unaltered. Bryan v. MacPherson, #08-55622, 2010 U.S. App. Lexis 12511 (9th Cir.).
     Officers acted in an objectively reasonable manner in their gradual escalation of the use of force against a yelling, cocaine intoxicated man who they encountered while responding to a 911 call indicating that shots had been fired. The suspect ran from the officers, threw something at them, and charged at one officer. He exhibited great strength and the officers used increased force as he continued to resist efforts to subdue him, beginning with verbal warnings, and subsequently using pepper spray, hand and arm manipulation techniques, and finally a Taser, following which the man continued to struggle, but the officers were at last able to handcuff him behind his back while he was facedown. The man died following the struggle, but the court noted that the officers had used no force at all until he attacked one of them, and that they reacted to a "rapidly evolving, volatile situation" with "measured and ascending responses." Galvan v, City of San Antonio, #08-51235, 2010 U.S. App. Lexis 11114 (Unpub. 5th Cir.).
     An arrestee stated that he had been sitting in his truck outside a wedding with the groom when police started to spray mace into a crowd that had gathered. He called to report this and the police dispatcher allegedly told officers on the scene that he was on the phone "bothering" her. Officers then pulled him from his truck, threw him on the ground face first, and started kicking him. One officer shocked him twice with a Taser. Upholding the denial of qualified immunity to the officer who used the Taser, a federal appeals court found that, if the facts were as alleged, and the plaintiff was not resisting arrest, an officer could not reasonably have thought that the use of the Taser was legal under the circumstances. Kijowski v. City of Niles. #09-3764, 2010 U.S. App. Lexis 7222 (Unpub. 6th Cir.).
     The City of Fort Worth, Texas has reached a $2 million settlement with the family of a man with a history of mental illness who died after being shocked two times with a Taser by one of three police officers attempting to restrain him in front of his home after receiving complaints that he was creating a disturbance. The officers surrounded the man, and one of them drew and fired her Taser, just as the other two officers were allegedly about to take the man down. The two darts struck him on the right side of his lower neck, and in the chest. The officer allegedly mistakenly held the trigger for 49 seconds, later indicating that she was unaware that the darts would continue to shock the man if she failed to release the trigger, according to the medical examiner's report. When the man did not comply with orders to put his hands behind his back, she released the trigger for a second and then pulled it a second time, with the second shock lasting five seconds, after which the man stopped breathing and was pronounced dead. Jacobs v. City of Fort Worth, #4:09-cv-00513, U.S. Dist. Ct. (N.D. Tex. May 2010).
     Officers were granted qualified immunity in a lawsuit claiming that they used excessive force when they applied a Taser three times to a woman to complete her arrest. There was probable cause for the arrest, given the plaintiff's refusal to sign a notice concerning her speeding violation, and the officers' use of the Taser in drive-stun mode, while it may have been painful, was temporary and localized, and did not cause incapacitating muscle contractions or significant lasting injury. The trial court's statement that the officers had "numerous other means" of removing the plaintiff other than the use of the Taser amounted to improper after-the-fact speculation, and failed to specify what other steps officers could have actually taken at the time when they needed to get the resisting motorist out of her vehicle to arrest her. Brooks v. Seattle, #08-35526, 2010 U.S. App. Lexis 6293 (9th Cir.).
     An officer, concerned for a bicycle rider's safety, rolled down the window of his vehicle and suggested that the man get off a busy street near the airport. The bicycle rider pulled over, and the officer also stopped and exited his vehicle, allegedly telling the bike rider to "get up on the curb or you will be tasered or maced." After a discussion, the bike rider started riding off, and the officer allegedly grabbed him and threw him to the ground. A second officer on the scene then used a Taser on the man after a struggle ensued. It was disputed whether he was resisting the officers. The bicycle rider claimed that the resulting pain was "excruciating," and that it completely incapacitated him, causing him to collapse to the ground and suffer additional scrapes and bruises. The bicycle rider filed an excessive force lawsuit. The court held that a reasonable jury could find that excessive force was used, as the bicycle rider had not committed a serious or violent crime, and that there was a genuine issue of fact as to whether he posed an immediate threat to the officers when the Taser was used on him. "Even if a Taser does not require hospitalization or cause quantifiable injuries, it does cause extreme pain, and such pain may support a claim for excessive force." Orsak v. Metropolitan Airports Cmsn. Police Dept., #08-5274, 2009 WL 5030776, 2009 U.S. Dist. Lexis 116382 (D. Minn.).
     The use of a Taser against a husband in a domestic violence case did not violate his rights, given the close quarters in which the officers and the plaintiffs encountered each other and the intoxicated state the husband was in, which indicated that the officers faced a very real threat of immediate harm. Mattos v. Agarano, #08-15567, 2010 U.S. App. Lexis 694 (9th Cir.).
     An officer allegedly used a Taser without warning against an agitated motorist during a traffic stop, causing him to fall face first onto the ground, fracturing four teeth and suffering facial contusions. In denying the officer summary judgment on the basis of qualified immunity, a federal appeals court held that, if the facts were as alleged by the plaintiff motorist, the force used by the officer was excessive. The court characterized use of the Taser as non-lethal force, but also as an "intermediate or medium, though not insignificant" use of force, requiring justification by a "strong governmental interest" compelling the use of such force, in light of the pain and incapacitation it causes, and the possibility of injury from resulting falls. Construing the facts in a manner most favorable to the plaintiff for the purposes of appeal, the court stated that the motorist was unarmed, did not attempt to flee, and was standing next to his vehicle without advancing in any direction. He was therefore not an immediate threat to the officer, and was not a flight risk. Under those circumstances, if true, there would have been no immediate need to subdue him before additional officers arrived or "less invasive means were attempted." Bryan v. McPherson, #08-55622, 2009 U.S. App. Lexis 28413 (9th Cir.).
      Summary judgment was properly granted to the manufacturer of the Taser used by sheriff's deputies against an arrestee prior to her death, as the plaintiffs failed to show that the use of the Taser caused her death. The deputies acted reasonably in using the Taser against the arrestee because she refused to comply with their orders and engaged in active resistance to a lawful arrest. Additionally, there was a lack of evidence that the deputies should have known that the arrestee's behavior indicated a serious disease rather than constituting a temporary response to her known use of methamphetamine. There was no evidence that the deputies knew that the failure to provide prompt medical treatment would lead to her death. In particular, the court stated, the deputies "had no knowledge of the medical condition called 'excited delirium' or its accompanying risk of death. Mann v. Taser International, Inc., #08-16951, 2009 U.S. App. Lexis 26155 (11th Cir.).
     A father sued a city and one of its officers for his son's death after a traffic stop during which he was arrested for traffic and drug offenses. As to an excessive force claim, the court ruled that whatever the answer was on the question of whether compelling compliance alone could be a constitutional basis for using a Taser on a fully secured arrestee, the son had not had a clearly established right not to be subjected to the Taser on that basis, so the officer was entitled to qualified immunity. On a claim that the officer had been deliberately indifferent to the son's serious medical needs, the court ruled that it was insufficient to merely show that the officer was aware that the arrestee had taken drugs or was drug intoxicated. To impose liability for the death, the father had to show that the officer knew that the drug use would cause a serious medical need, and the plaintiff failed to meet that burden. Sanders v. City of Dothan, #1:07-cv-008, 2009 U.S. Dist. Lexis 110803 (M.D. Ala.).
     Officers encountered a man who flagged them down and appeared agitated. The man stated, "they're shooting at me," and started moving towards the officers. They shocked him with a Taser at least eight times in a two-minute period, and he subsequently died. A federal appeals court rejected qualified immunity defenses presented by the officers, stating that, viewing the facts in the light most favorable to the decedent, he was not accused or suspected of any crime at the time, and the officers made no attempt to arrest or handcuff the man either during or after any use of the Taser, as well as continuing to administer Taser shocks after he was lying on the hot pavement immobilized. A fact finder also could find that the Taser shocks caused extreme pain and the decedent's death. Oliver v. Fiorino, #08-15081, 2009 U.S. App. Lexis 23579 (11th Cir.).
     A police chief stopped a vehicle that a woman was driving, and in which her husband and two other persons were passengers, believing that he had observed traffic violations. The husband, believing that he saw the chief inappropriately touch his wife, who was being arrested for refusing to comply with a sobriety test, exited the vehicle, yelling at the chief and taking a step forward. The chief told the husband to get back in the car and shocked him with a Taser, but he got up and started running at the chief. The chief placed the wife in the front of the patrol car. The chief then allegedly instructed the husband to get in the patrol car, and when he had difficulty doing so, pushed him into the car, allegedly hitting his head on the door. A federal appeals court upheld a jury verdict for the police chief on a Fourth Amendment "improper touching" claim. The chief's use of force against the husband was objectively reasonable in light of the husband's attempted interference with the wife's arrest and the wife's own non-compliance. In the absence of a constitutional violation by the chief, the plaintiffs could not assert a liability claim against the municipality. Cook v. City of Bella Villa; #08-2712, 2009 U.S. App. Lexis 21681 (8th Cir.).
     A Polk County, North Carolina deputy sheriff was convicted of criminal charges of assault for using a Taser to shock a woman when she was in custody. The woman was arrested on larceny and other charges, and became disruptive at the county jail, so that the deputy tasered her several times. The criminal charges related to his action of shocking her with the Taser again after she was handcuffed to a chair and subdued. The deputy, who is no longer employed by the sheriff's department, received a 30 day suspended jail sentence and a $500 fine. Reported in the Asheville Citizen Times, August 20, 2009.
     An officer warned a hospital patient that he would tase her if she did not comply with orders to go with medics to a psychiatric facility. Following the warning, he did tase her in bed when she allegedly refused to comply. The officer tased her a second time as she tried to remove the taser wires. In an excessive force lawsuit, the trial court ruled that federal civil rights claims were barred by a two year statute of limitations, and that the plaintiff's adding of the real names of the officers to the complaint after the statute of limitations expired was insufficient to allow the claims to go forward when it had originally been filed using fictitious names for the defendants and the plaintiff failed to diligently pursue the lawsuit, waiting five months after the filing of the lawsuit to request information about the officers' identities. A state law battery claim was still viable, however, and there was evidence that the repeated use of the taser was unreasonable, as well as a factual issue about whether the arrest of the patient for disorderly conduct was supported by probable cause. Mann v. Darden, #2:07cv751, 2009 U.S. Dist. Lexis 56373 (M.D. Ala.).
     In a case where an officer suspected a motorist had committed a misdemeanor open bottle violation, which is punishable by 90 days incarceration, a $1,000 fine, or both, a federal appeals court was not convinced that an officer's use of a Taser against the motorist was objectively reasonable. The officer was not entitled to summary judgment. The plaintiff contended that he was not actively resisting arrest or attempting to flee, and posed little or no threat to the officer or members of the public. Brown v. City of Golden Valley, #08-1640, 2009 U.S. App. Lexis 16071 (8th Cir.).
     UCLA has entered into a $220,000 settlement in a lawsuit filed by a student who a campus police officer repeatedly shocked with a Taser after he refused to show his identification card upon request. The student, who is Iranian-American, argued that he was treated this way because of his Middle Eastern appearance. Tabatabainejad v. Univ. of Cal. L.A., #2:07-cv-00389, U.S. Dist. Court, (C.D. Calif.).
     Editor's Note:  The Police Assessment Resource Center (PARC) conducted an outside investigation of the incident. See the PARC report here.
     Officers acted reasonably in pursuing a motorist to his home after he drove away instead of stopping as they commanded because he was violating a noise ordinance. They followed him inside his house and used a Taser on him while trying to subdue him. His wife picked up a bar stool and grabbed a knife in an effort to prevent the officers from tasing her husband again, threw one officer's Taser outside the house, and then locked that officer out of the house. The officers' actions were justified by their hot pursuit of the husband, and the wife's hostile actions. They had exigent circumstances to enter the home, probable cause to prosecute the wife for menacing them, and did not use excessive force under the circumstances. Bash v. Patrick, #2:08-cv-240, 2009 U.S. Dist. Lexis 30163 (M.D. Ala.).
     After a $20,000 settlement was reached in an arrestee's lawsuit concerning the use of a Taser against him during an arrest, the trial court awarded him $200,000 in attorneys' fees and $15.034.10 in costs. The appeals court found that the trial court failed to explain how it arrived at the number of hours of attorneys' fees awarded or how it arrived at the applicable hourly rate to be paid, making "meaningful review" on appeal "impossible." The plaintiff only prevailed on the excessive force claim, with summary judgment entered against the plaintiff on other claims, including wrongful arrest/detention, and municipal liability. While the appeals court found that all claims in the case were related, it also found that attorneys' fees must be "adjusted downward" when a plaintiff "has obtained limited success" on his claims, and the "result does not confer a meaningful public benefit." The plaintiff, the court noted, received in the settlement roughly one-fourth of the damages in excess of $75,000 sought in his complaint and less than one-tenth of the $251,000 he requested in settlement. The appeals court, therefore, ordered the trial court to reconsider the amount of attorneys' fees and costs to be awarded. McCown v. City of Fontana, No. 07-55896, 550 F.3d 918(9th Cir. 2008).
      In a case where a jury awarded products liability damages against a manufacturer in a lawsuit over the death of a man subjected to multiple Taser shocks, but rejected claims that police officers used excessive force in deploying Tasers against the decedent, the trial court has also ordered the manufacturer to pay $1.423 million in attorneys' fees to the plaintiffs. The attorneys' fee award was made under the California Private Attorneys General Statute, Calif. Code of Civil Procedure Sec. 1021.5. Heston v. City of Salinas, No. C 05-03658, U.S. Dist. Court for the Northern District of California, San Jose Division (Jan. 30, 2009).
     A state trooper sued the manufacturer of a Taser, claiming that it had failed to provide warnings of an alleged risk that exposure to it could cause fractures, resulting in him suffering a fractured spine during a training exercise. A trial court did not abuse its discretion in excluding expert witness testimony by the trooper's treating physician that his injury was caused by exposure to the Taser. The doctor's opinion regarding the cause of the injury was "unreliable" because a spinal compression fracture is not the type of injury that ordinarily results from a Taser shock, and the doctor did not show that his opinion that such a shock could cause this kind of injury was testable. In the absence of admissible expert medical witness testimony on causation, the defendant manufacturer was entitled to summary judgment. Wilson v. Taser International, Inc., No. 08-13810, 2008 U.S. App. Lexis 25252 (Unpub. 11th Cir.).
     A police officer acted reasonably in using a Taser to stun a man who refused to release a chokehold on a much smaller man he had pinned down on the ground. Use of the Taser was objectively reasonable and necessary under these circumstances. Woosley v. Paris, Civil Action No. 06-365, 2008 U.S. Dist. Lexis 97663 (E.D. Ky.), summary judgment granted by Woosley v. Paris, 2008 U.S. Dist. Lexis 98252 (E.D. Ky.).
     Motorist subjected to Taser during his arrest for intoxicated driving, causing him to fall to the ground and suffer injuries, was properly awarded $111,000 in damages when he had not attempted to escape or to assault the officers, although he had made certain defiant gestures or statements. Parker v. Gerrish, No. 081045, 2008 U.S. App. Lexis 23079 (1st Cir.).
     Officers were properly denied qualified immunity on federal excessive force claims and immunity under Michigan's Governmental Tort Liability Act on state law assault and battery claims. The decedent allegedly drowned after police beat him with a baton, held him down, and used a Taser on him while he was lying in two feet of sediment, mud, and water. They were arresting him on suspicion of blocking traffic on a highway with moved construction equipment.  If true, the officers' actions were clearly unreasonable. Landis v. Baker, No. 07-2360, 2008 U.S. App. Lexis 21946 (Unpub. 6th Cir.).
     Federal appeals court upholds multiple uses of Taser against handcuffed motorist arrested on highway who refused to comply with instructions to stand up and walk to deputy's car. A deputy made an arrest of a motorist during a traffic stop at night on a highway in a location where there was passing traffic. He contended that he had to use force, including multiple applications of a Taser, to accomplish the arrest, due to the motorist's resistance. The arrestee, described in the court decision as "financially destitute and homeless," allegedly became "agitated" about getting a ticket, and, despite the deputy's repeated requests that he do so, refused to sign the traffic citation, which is required by Florida law. The deputy warned him twice that, if he did not sign, he would be arrested, and the motorist then said, "arrest me," and allowed himself to be handcuffed. He then got out of his car.
     As the deputy walked towards his patrol car with the arrestee, the arrestee, a 23-year-old man who was 6 feet, 2 inches tall and weighed 180 pounds, allegedly dropped to the ground behind his car, crossed his legs, and continued sobbing, refusing to get up and walk. When the deputy warned him of the possibility of getting hit by a passing car on the highway, the arrestee allegedly said, "My life would be better if I was dead."
    A federal appeals court overturned the trial court's denial of the deputy's motion for summary judgment on the basis of qualified immunity. The appeals court found that the deputy only used the Taser after first trying other approaches such as persuading the motorist to stop his resistance, attempting to lift him, and warning him repeatedly that the Taser would be used against him and then providing him with time to comply. The motorist, at the time, was handcuffed, but refused to stand up and go to the deputy's car, according to the court. The court reasoned that the presence of passing traffic created a possible hazard of injury, and that the Taser did not cause significant injuries such as burns requiring medical attention. Under the circumstances, the court concluded, the use of the Taser, which was used three times, was reasonable and moderate non-lethal force. The court also noted that, while the arrestee was handcuffed at the time, his feet were not bound, and he was moving. The court stated that the
"Plaintiff resisted arrest. Given this circumstance in the context of all the other facts, Deputy Rackard’s gradual use of force, culminating with his repeated (but limited) use of a taser, to move Plaintiff to the patrol car was not unconstitutionally excessive. In addition, even if Plaintiff could establish that some of the deputy’s use of force violated the Fourth Amendment, the deputy still would be entitled to qualified immunity because the applicable law at the time did not clearly establish that the deputy’s conduct -- given the circumstances -- was unconstitutional."
     The court also stated that:
"We do not sit in judgment to determine whether an officer made the best or a good or even a bad decision in the manner of carrying out an arrest. ... "The government has an interest in arrests being completed efficiently and without waste of limited resources: police time and energy that may be needed elsewhere at any moment. ... We also reject the district court’s rationale that had Deputy Rackard simply waited for back up, two officers could have lifted [Plaintiff] and carried him to the car without any application of force. A single officer in the deputy’s situation confronting a non-compliant arrestee like Plaintiff need not -- as a matter of federal constitutional law -- wait idly for backup to arrive to complete an otherwise lawful arrest that the officer has started. ... That an officer has requested more police assistance does not make the use of force before reinforcements arrive unreasonable."
     A strong dissent in the case stated that "I write to express my view that the Fourth Amendment forbids an officer from discharging repeated bursts of electricity into an already handcuffed misdemeanant—who is sitting still beside a rural road and unwilling to move—simply to goad him into standing up." Buckley v. Haddock, No. 07-10988, 2008 WL 4140297, 2008 U.S. App. Lexis 19482 (Unpub. 11th Cir.).
     A mother sued a city and three city police officers for causing the death of her schizophrenic and previously suicidal son after she summoned them to her home with a 911 call. The son was then barricaded in his bedroom, refusing to leave. The officers forced opened the bedroom door and fired Tasers at him, and he was pronounced dead the next day. The plaintiff claimed that inadequate training by the city in training officers to deal with mentally ill people caused his death. The city sought to bifurcate the plaintiff's claims, with the claims against the officers being tried first, for the purpose of avoiding the burden of discovery. The court ruled that, since the mother's claim was a very specific one of inadequate training on dealing with mentally ill persons, discovery on that issue would not constitute a "significant burden" on the city, so the city's motion for bifurcation, combined with a stay of discovery, was denied. Wilson v. City of Chicago, No. 07C-1682, 2008 U.S. Dist. Lexis 60658 (N.D. Ill.).
     Officers were not entitled to qualified immunity on claims that they used excessive force in deploying a Taser on a 6-year-old, 53-pound minor, allegedly causing permanent and severe injuries. The child was placed in a school principal's office after being disruptive in a class. He broke a picture frame in the office, and police officers allegedly found him standing with a piece of glass in his hand. One officer kneeled in front of the child while the other sat in front of him, and then moved within one foot of him just before using the Taser. At the time of the incident, which was 2003, it was "obvious" that the Fourth Amendment prohibited the use of the Taser under these circumstances, according to the appeals court. Moretta v. Abbott, No. 07-10795, 2008 U.S. App. Lexis 11749 (Unpub. 11th Cir.).
     Jury awards more than $5 million against manufacturer in lawsuit over death of man subjected to multiple Taser shocks, but rejects claims that police officers used excessive force in deploying Tasers against the decedent. Heston v. City of Salinas, No. C 05-03658, U.S. Dist. Court for the Northern District of California, San Jose Division (June 6, 2008). Details follow:
     In a lawsuit over the death of a man who died after being subjected multiple times to Taser shots, a federal court jury has returned a verdict in favor of defendant police officers and the city which employed him on all claims, including federal civil rights and negligence claims, while awarding damages, including $5.2 million in punitive damages, on a negligent failure to warn theory against Taser International, Inc., the manufacturer of the Tasers used by the officers.
     Police in the case responded to a 911 call from the decedent's father reporting that his son was acting "strangely," and that he suspected that his son, who had a history of substance abuse, might be under the influence. When the son later started throwing household items out of the front door, police officers, having previously left, returned, and fired Tasers at him. They allegedly discharged their Tasers multiple times. He became unconscious and paramedics were able to restore his breathing and heartbeat. He was taken to a hospital, did not regain consciousness, and died the following day.
    The jury rejected any claim that an act or omission by one or more of the four defendant police officers caused the decedent to be subjected to excessive force during his arrest or detention "by deployment" of Tasers against him.
     The jury answered "yes" on a jury verdict form to the question whether a "reasonably prudent manufacturer of an electronic control device knew or reasonably should have known that the Taser ECD [electronic control device] was dangerous or likely to be dangerous because prolonged exposure to electric shock from the device potentially causes acidosis to a degree which poses a risk of cardiac arrest in a person against whom the device is deployed?" The jury further found that the manufacturer failed to adequately warn Taser purchasers of that risk, and that the failure to provide such warnings of the "risk of prolonged deployment" was a "substantial factor in causing the officers to use the device in such a way" against the decedent.
     The jury rejected, however, a strict products liability claim, stating that at the time of the manufacture and sale of the Tasers, the manufacturer did not know and/or it was not knowable "by the use of available scientific knowledge" that prolonged exposure to shocks from Taser ECDs "potentially causes acidosis to a degree which poses a substantial danger, namely of causing a person against whom the device is deployed to have a cardiac arrest."
     The jury awarded $21,000 in compensatory damages to the decedent's estate for injuries he suffered prior to his death, along with $200,000 in punitive damages. The jury also awarded $1 million in compensatory damages to the parents of the decedent for losses resulting from the death of their son, along with $5 million in punitive damages. Finally, the jury found that the decedent's own negligent conduct contributed to causing his death, and found that the decedent was 85% at fault for his death, with Taser International 15% at fault. Taser International was therefore found 15% responsible for the $1,021,000 in compensatory damages, as well as for a total of $5,200,000 in punitive damages.
     In a case where a police officer accidentally shot and killed a suspect, drawing her gun while thinking it was her Taser, a federal appeals court upheld summary judgment for the Taser manufacturer on a products liability design defect claim. The court noted that the Taser and holster were not "used" when the injury occurred, and such use was necessary for the design defect claim. The court also found that the manufacturer exercised reasonable care in choosing a gun-shaped design for the Taser, when the only evidence presented on the decision-making process indicated that a handgun-shape was better for accuracy and feedback from training officers indicated that they preferred a handgun-shaped design. The court also rejected failure to warn, negligent warning, and training claims. Torrest v. City of Madera, No. 05-16468, 2008 U.S. App. Lexis 10169 (Unpub. 9th Cir.).
     In an excessive force lawsuit by a man shot with a Taser six times after he became violent following taking excessive amounts of anti-seizure medication, the trial court did not act erroneously in barring the jury from considering the use of the Taser against him as the cause of his kidney failure. There was not sufficient evidence to prove that the use of the Taser caused rhabdomyolysis in the arrestee. The appeals court upheld the denial of the plaintiff's motion for a new trial on damages after he was awarded a total of $1,000 against one officer for his use of the Taser. The appeals court vacated an attorneys' fee award of $10,616, and ordered reconsideration of the amount of that fee. Lash v. Hollis, No. 07-2356, 2008 U.S. Lexis 10247 (8th Cir.).
     When the evidence showed that a DUI arrestee was kicking, spitting, and refusing to cooperate with officers just before he was accidentally shot by an officer in the left buttock, the officer was entitled to use reasonable force. The officer intended to draw and fire his Taser, but mistakenly pulled out and fired his gun instead. The court found that the plaintiff's claim that the officer was not entitled to use any force at all was barred. Additionally, the fact that the arrestee was convicted for resisting the officers was inconsistent with his claim that he had offered no resistance to them, so that they were unjustified in any use of force. The plaintiff could, however, pursue his claims arising out of the accidental use of deadly force. Yount v. City of Sacramento, No. S139762, 2008 Cal. Lexis 5426.
     A deputy's use of a Taser against an arrestee when she was handcuffed and in foot restraints was unnecessary and excessive if the arrestee's version of the incident was true. While the Taser was only applied for 1.5 seconds, it was allegedly applied in a wanton, and sadistic manner, and not as part of a good faith effort to restore discipline. The use of the Taser caused the plaintiff to experience pain and electric shock, and to develop a scar. Use of a Taser to intimidate or punish an arrestee is not objectively reasonable and violates clearly established law, so that the deputy was not entitled to qualified immunity. Orem v. Rephann, No. 07-1696, 2008 U.S. App. Lexis 9178 (4th Cir.).
     Officer who intended to use a Taser holstered near her gun against a suspect, but instead drew and fired her gun, killing the suspect was not entitled to summary judgment. At the time, the suspect was seized for purposes of the Fourth Amendment and was handcuffed and in the back of a patrol car.  Torres v. City of Madera, No. 05-16762, 2008 U.S. App. Lexis 9648 (9th Cir.).
     Federal court rules that it is clearly established that it is unreasonable to Taser a person who was suspected of a minor, non-violent offense, and to do so without a prior warning, In this case, the court found, the plaintiff had not attempted to flee, gave no indication of violence, and was not warned before the Taser was used against her. Additionally, there were four officers present at the time, and the female plaintiff's husband had already been secured in the squad car at the time. The plaintiff merely allegedly disobeyed orders to cease talking on a phone to a 9-1-1 operator. The officer was not entitled to summary judgment. Brown v. City of Golden Valley, No. 06-3141, 2008 U.S. Dist. Lexis 11300 (D. Minn.).
     A federal appeals court overturned a trial court's summary judgment for police officers, their police chief, and the city that employed them in a lawsuit brought by an arrestee who was subjected to an arm-lock, a tackling, a Tasering, and a beating after he allegedly committed a misdemeanor in the officers' presence. The incident occurred when the plaintiff, after unsuccessfully attempting to defend himself against a traffic ticket, took the court file with him while walking to a courthouse parking lot to get money from his vehicle to pay his fine. The officers used force against him while he was on his way back to the courthouse. The appeals court found that the force used was not reasonable, given that the plaintiff was only suspected of "innocuously" engaging in conduct constituting a nonviolent misdemeanor, and did not resist arrest or attempt to flee. Under these circumstances, the court stated, a reasonable officer would not have taken these alleged actions.  Casey v. City of Federal Heights, No. 06-1426, 2007 U.S. App. Lexis 28537 (10th Cir.).
     When a coroner's report indicated that a man had died as a result of excited delirium and the presence of cocaine in his system, and that the application of a Taser did not cause or contribute to the man's death, the manufacturer could not be held liable under Louisiana state law. The man was being transported in an ambulance from a bar after he became ill. He was stunned by police with the Taser once after he began waving a knife at paramedics and shaking it violently. Smith v. Louisiana State Police, Civil Action No. 07-1189, 2007 U.S. Dist. Lexis 73689 (E.D. La.).
     If the facts were as the plaintiff alleged, the decedent was knee deep in water, unarmed, surrounded by police, and had ceased trying to escape arrest when he was shocked with a Taser five times, struck with a baton multiple times, and pushed into a position that submerged his head in water, causing him to drown. Under those circumstances, officers were not entitled to qualified immunity on an excessive force claim. The officers should have known that striking the arrestee with a baton after he was no longer resisting violated clearly established constitutional rights. Prior case law indicating that the unwarranted use of pepper spray was excessive force was sufficient to put officers on notice that improper use of a Taser could be excessive force. Additionally, the officers should have known that it is almost always an excessive use of force to restrain an arrestee in a manner that places his head under water for a long period of time. Landis v. Cardoza, Civil No. 05-74013, 2007 U.S. Dist. Lexis 74838 (E.D. Mich.).
     Police officers who came to a home in response to a 911 call reporting a disturbance there did not violate a man's rights by entering the residence, using a Taser to subdue him when they found him naked in an attic-like storage area armed with a handgun, and taking him to a hospital where he was involuntarily committed for a psychiatric evaluation. Testimony indicated that the officers believed that they were entering a home where there was a potentially violent situation and where they might need to aid a potentially injured occupant, so that the officers were entitled to qualified immunity. Nero v. Baltimore County, Md., Civil No. AMD 06-1687, 2007 U.S. Dist. Lexis 74710 (D. Md.).
     There were genuine issues of fact as to whether a police officer's use of a taser twice against an arrestee was reasonable, when the arrestee claimed that he was not resisting and laying on the hood of a police car at the time. Additionally, prior to the officer's second use of the taser, a state trooper on the scene allegedly urged the officer, "Don't do it." Money damage claims against the State of Delaware and the state trooper in his official capacity were barred by the Eleventh Amendment. Yarnall v. Mendez, No. 05-527, 2007 U.S. Dist. Lexis 66639 (D. Del.).
     Following a bench trial, a federal judge entered judgment in favor of arresting officers in a lawsuit brought by a residential burglary arrestee who was tased five times during the course of his arrest. Each use of the taser lasted five seconds, and all five uses of the taser took place within an 85 second time period. The first use of the taser was clearly justified to stop the suspect from fleeing, at a time when the first officer was alone with the fleeing suspect. The court further held that, at the time of the arrest, the law concerning excessive force claims involving the use of tasers would not clearly indicate to a reasonable officer that multiple tasings under these circumstances violated the arrestee's rights. Beaver v. City of Federal Way, No. C05-1938, 2007 U.S. Dist. Lexis 64665 (W.D. Wash.).
     An officer's mistaken use of his handgun, rather than the taser, which he allegedly intended to shoot an arrestee with, did not change the fact that the shooting constituted a seizure for purposes of the Fourth Amendment. Further proceedings were ordered on the issue of whether the seizure was unreasonable v. Henry v. Purnell, No. 06-1523, 2007 U.S. App. Lexis 22436 (4th Cir.).
     Jury's award against officer on motorist's claim that the officer used excessive force in subjecting him to two Taser shots was adequately supported by the evidence. The plaintiff claimed that the Taser was used against him after the officer denied his request to get up when he was the victim of a rear-end vehicle collision, and while he was partially restrained, unarmed, and "visibly" suffering from claustrophobia and begging the officer not to shoot him. The officer was not entitled to qualified immunity. Further proceedings were also ordered on the issue of whether an award of punitive damages was appropriate. Wakefield v. City of Escondido, No. 05-56769, 2007 U.S. App. Lexis 18270 (9th Cir.).
     Officer's use of Taser to restrain an uncooperative epileptic who had just suffered two seizures and was resisting medical personnel was not an excessive use of force. In fact, the court reasoned, it may have prevented much greater harm to him or to other people present. Stanley v. City of Baytown, #4:04-cv-02106, 2005 WL 2757370 (S.D. Tex. 2005). [2005 LR Dec]
     Arrestee's conviction for obstructing an officer did not bar his federal civil rights lawsuit for excessive force by an officer who shot him in the buttocks with his handgun while intending to draw and fire his Taser gun instead. Yount v. City of Sacramento, No. C046869, 2005 Cal. App. Lexis 1732 ( Cal. App.). [2005 LR Dec]
     Federal court grants summary judgment to Taser International in lawsuit filed by city attempting to obtain indemnification on a products liability basis for the death of an arrestee killed by a police officer who mistakenly shot him with her Glock semiautomatic weapon when she intended to use her Taser. Court rejects argument that Taser was liable because of a "design defect" making the Taser look too much like a gun, or on the basis of several other theories. Torres v. City of Madera, #02-6385, U.S. District Court, E.D. Cal. (July 11, 2005). [2005 LR Sep]
     Inoperable tag light on truck gave officer a basis for a traffic stop, and subsequent "belligerent and confrontational" behavior by motorist provided probable cause for a custodial arrest. Officer's use of Taser gun to accomplish the arrest was not excessive force under the circumstances. Draper v. Reynolds, #03-14745, 2004 U.S. App. Lexis 9498 (11th Cir.). [2004 LR Jun]
     Arrestee could not recover damages from defendant officers in civil rights suit for use of excessive force when officers' testimony, police records, and arrestee's own deposition all indicated that these were not the officers with whom arrestee claimed to have been involved in an altercation with prior to his arrest. Russell v. Eldridge, 832 F.Supp. 535(D.Conn 1993).
     Federal appeals court holds that use of stun gun to subdue man who was resisting arrest by kicking and biting was an appropriate use of force. Hinton v. City of Elwood, Kansas, 997 F.2d 774 (10th Cir. 1993).
     Three-four hour training on use and effect of stun guns was negligence at worst, appeals court finds, and could not be the basis for a civil rights claim for inadequate training, which requires "deliberate indifference" to arrestee's rights; plaintiff awarded $19,680 for state law negligence claim. Mateyko v. Felix, 924 F.2d 824 (9th Cir. 1991).