The Fourth Circuit Court of Appeals recently held[1] that an officer’s use of the drive-stun Taser technique on an emotionally disturbed, passively resisting subject of a civil commitment order was unconstitutional.  Although finding the use of force unconstitutional, the Court affirmed summary judgment in favor of the officer based on qualified immunity because the law was not clearly established, thus failed to place the officer on notice that his conduct was unreasonable.

In this case, law enforcement officials attempted to take the subject of a civil commitment order into custody who was seated, grasping a pole and passively resisting by refusing to move.  Only moments after receiving confirmation of the order authorizing them to take the subject into custody, and without attempting to obtain compliance through lesser means, an officer repeatedly tased the subject using the drive-stun technique.  The technique not only failed, but increased the subject’s resistance.  He was ultimately secured in handcuffs, but almost immediately, suffered a medical emergency and died shortly thereafter.

In reaching its decision, the Circuit Court specifically analyzed the objective unreasonableness of the use of force under these circumstances, citing, among other things: (1) the failure to attempt to communicate or negotiate; (2) the failure to attempt to gain compliance using lesser force techniques; (3) the absence of suspicion of any criminal conduct; (4) the absence of any threat to officers or citizens; (5) the absence of any active resistance, fighting or attempt to flee, and (5) the disproportionality of the Taser application under these facts.  The Court’s conclusion that the use of a Taser was unreasonable force in response to resistance that did not raise a risk of immediate danger, is consistent with its treatment of officers’ other tools of compliance.  Simply stated, the Court “declined to equate conduct that a police officer characterized as resistance with an objective threat to safety entitling the officer to escalate force.”  

Although the holding of this case is narrowly tailored to its specific facts, it is an important one because it provides guidance for officers and demonstrates the need to communicate with all suspects, if possible, prior to the application of force.  While the Taser has proven a valuable and effective officer safety device, it does not serve as a substitute for communication or lesser force techniques to obtain compliance in static situations without immediate risk to officers, citizens or subjects.  Communication is often the best weapon in obtaining voluntary compliance and its effective use in non-violent, non-emergency situations cannot be overstated. 

J. David Marsey is a former police officer, investigator and prosecutor and is an attorney at the law firm of RumbergerKirk in Tallahassee, Florida.  He defends and advises corporations, government entities and their employees on casualty, employment and constitutional issues throughout the state. For more information, please visit www.rumberger.com.

[1] Armstrong v. Village of Pinehurst, et al., Case No. 15-1191 (4th Cir. 2016).