Summary of 5th Circuit ECW Cases #FOP #FOPNO #FOPLegal

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In Louisiana, qualified immunity in any civil rights case brought under 42 USC § 1983 is decided based on analysis under Graham v. Connor, 490 U.S. 386 (1989) and whether or not the law was clearly established. Whether the law is clearly established is generally based on decisions on the U.S. Supreme Court and the local Circuit cases. Louisiana is in the Fifth Circuit. A summary of Fifth Circuit cases regarding the use of ECW in dart mode follows. Officer should pay particular attention to the cases marked RESTRICTIVE.

5th Circuit Cases

Dart Mode Cases

RESTRICTIVE: A consent decree was entered in a lawsuit by the U.S. government against the City of New Orleans regarding various practices in the city’s police department. On pages 25-27, a section addresses the use of Electronic Control Weapons, and provides that they shall only be used “when such force is necessary to protect the officer, the subject, or another party from physical harm, and other less intrusive means would be ineffective.” It requires a verbal warning first unless doing so would place any person at risk. It prohibits use when deployment “may cause serious injury or death from situational hazards, including falling, drowning, losing control of a moving vehicle, or igniting a potentially explosive or flammable material of substance, except where lethal force would be permitted.” It bars use of Tasers in the stun mode as “a pain compliance technique,” and says they should only be used in stun mode to supplement the dart mode to complete the incapacitation circuit, “or as a countermeasure to gain separation between officers and the subject, so that officers can consider another force option. Except in situations where lethal force would be justified or the officer believes that there is an imminent risk of serious physical injury, it bars used of Tasers against visibly pregnant women, elderly persons, young children, or visibly frail persons. Many other specific restrictions are imposed. U.S. v. City of New Orleans, #2:12-cv-01924, U.S. Dist. Court (E.D. La.), PACER Doc. 159-1 Filed 01/11/13; also see 2013 U.S. Dist. Lexis 17249 and 2013 U.S. Dist. Lexis 73863. Keywords: elderly, juvenile, pregnant.

A pretrial detainee at a Parish jail was involved in a fight with another prisoner. He claimed that jail personnel used excessive force by spraying him with mace and using a Taser in the dart mode against him without warning while breaking up the fight and while he was defending himself against the other prisoner, who he claimed had attacked him. His claims against the sheriff were frivolous as he had not alleged any personal involvement. His claims against the warden for allegedly failing to respond to his grievance about the incident also were frivolous. He also failed to show that the force used was deployed in a malicious and sadistic manner with the intention to cause harm rather than in a good-faith effort to maintain or restore order. His excessive force claim was therefore also frivolous. A magistrate recommended that all claims be dismissed. Jefferson v. Strain, #13-0328, 2013 U.S. Dist. Lexis 126126 (E.D. La.). The trial judge, in a brief order, adopted this recommendation. Jefferson v. Strain, #13-0328, 2013 U.S. Dist. Lexis 126117 (E.D. La.).

An officer was entitled to qualified immunity in a case where a man subjected to eight applications of a Taser (seven stun mode applications and one unintended dart mode application) during an arrest died. Prior rulings in the Fifth Circuit did not put the officer on notice that using the Taser under these circumstances would constitute excessive force. There was no evidence that the officer intended to have the Taser fire in the dart mode, and, unlike dart mode, stun mode causes only temporary, localized pain. The decedent was arrested under a valid active felony warrant, tried to evade arrest, and ultimately was only subdued through threat of deadly force at the end of a foot chase. He did not comply with repeated requests to cooperate with the process of the arrest. Even though he was handcuffed, he refused to cooperating, telling the officers to “just drag me,” and refusing to get up and walk more than a few feet before going down again and refusing to get up, which caused the officer to use the Taser again. He had sickle cell anemia, which the officers did not know, and an autopsy revealed that his red blood cells had sickled before his death. Thomas v. Nugent, # 12-30527, 2013 U.S. App. Lexis 17951 (5th Cir.). Keyword: handcuffed.

RESTRICTIVE: A man placed two calls to 911 claiming that he had been threatened with a gun by a man who had kicked open his motel door after he paid a woman for a massage — but refused her solicitation to pay her more for an act of prostitution. He stated that he had driven away in his car. Officers went to the area and saw the man’s car driving in the area and ordered him to stop, because someone at the motel had told them that a “drunk man” had entered his motel room and at first refused to leave and was now circling the motel parking lot in his vehicle. When they tried to handcuff him as he exited his vehicle, he tried to pull away and a scuffle broke out. When he was taken down and a cuff was put on one wrist, he kept struggling and a Taser was fired in the dart mode, but only one probe hit the suspect. The Taser was then used in stun mode twice and he was subdued, handcuffed, and arrested for resisting a search. Both offices shocked themselves with the Taser wires during the incident. The trial court found that, viewed in the light most favorable to the plaintiff, it was not clear that the officers reasonably believed that he was suspected of any serious crime and that even the officers were “unsure” of what crime he allegedly committed at the motel, and only had possible reasons to believe that he might have been an intoxicated driver, although they detected no odor of alcohol on him. He was actually the one who called the officers in the first place, and the officers, in recorded radio calls, seemed to acknowledge that, describing the man in the car as the “complainant.” The court discounted an officer’s claim that he feared that the motorist would use his vehicle as a weapon against him as refuted by a video showing the officer rushing forward into the open lot and in the direction of the front of the car that he later claimed posed a threat to him. The suspect put his car in park and turned off the ignition before the Taser was used. The suspect was initially compliant, even allowing one wrist to be handcuffed. It was undisputed that he never swung, kicked or attacked the officers in any way, and did not attempt to flee. A jury could also find the officer’s use of the Taser was excessive. When the Taser was deployed, he was on his knees, and at most resisting the officers’ efforts to push him down onto his stomach. He was not flailing or striking at the officers, nor was he attempting to stand and break free. The officers were not entitled to qualified immunity on their use of force, but claims for municipal liability on the basis of inadequate training, supervision, hiring, or retention were rejected. Chacon v. City of Austin, A-12-CA-226, 2013 U.S. Dist. Lexis 71967 (W.D. Tex.).

RESTRICTIVE: A stopped motorist reached for the glove compartment in the car to get his insurance card. An officer saw that there was a handgun in the compartment, and thought that the man was reaching for it. A second officer, hearing the first officer’s call for assistance, pulled the man out of the vehicle from the driver’s side and then used his Taser once in the stun mode. Both officers then fired their Tasers at the man in the dart mode and he fell to the ground. The officers were entitled to qualified immunity for pulling the man out of the vehicle because it was believed necessary to prevent him from reaching for the handgun. It was not clear, however, that the first use of the Taser was justified. While the man was standing up, contrary to a command to get on the ground, a video showed him standing still with his back to the officer and his arms in back of him in anticipation of being handcuffed. That suggested compliance rather than noncompliance, the court said. Being stunned, he did react “instinctively,” turning his body and moving his arms out from behind his back before both officers fired their Tasers at him in the dart mode. The court ordered oral argument as to whether the officers were entitled to qualified immunity on the use of their Tasers. Russell v. City of Magee, Miss., #3:11-CV-637, 2013 U.S. Dist. Lexis 42343 (S.D. Miss.).

CAUTION: An officer patrolling in what was believed to be a violent, high crime, high drug use area was alerted by an undercover agent that a man of a certain description was believed to be involved in a hand-to-hand narcotics deal in the area. Believing that he saw the man, he exited the vehicle and commanded him to “come here.” He stopped but did not approach, and when asked for ID, he started to walk away, saying that it was in his house. The officer grabbed him and told him to put his hands on the hood of his car, but the suspect got his phone out and tried to use it. The officer took the phone from him, and took him to the ground with an arm-bar takedown. After a struggle, he got up and started to flee. The officer applied a Taser in the dart mode twice, with the suspect falling to the ground after the first use, and being told to put his hands behind his back before the second activation. He subsequently died. What happened was largely recorded on video except for the second Taser activation. The court easily found that the first use of the Taser was justified by the man’s non-compliance and physical resistance and attempt to flee. The officer also could not rule out that the suspect might have been armed or under the influence of drugs. Police department policy was that subsequence discharges of a Taser may be used to “gain compliance,” but there were witnesses who said that he did not move after the first Taser discharge. There was therefore a genuine issue of fact as to whether the second use of the Taser was justified or whether the discharge which went on for nine seconds rather than a more standard five was excessive, but the officer was entitled to qualified immunity as it was not shown that the second use of the Taser violated clearly established law Four seconds after the first cycle stopped, the court noted, “(1) after having been involved in an altercation with an individual larger than he, (2) who resisted being questioned or searched, (3) who still had not been searched for a weapon (4) whose hands were not visible and (5) with no backup present,” the officer decided to deploy the Taser a second time. He testified that the suspect “moved and his hands were still under him (a fact that is somewhat contradicted by the eyewitnesses). It would not be plain to every reasonable officer that the use of the Taser again was unlawful under these circumstances unless it was clear” that the suspect was completely subdued, and therefore, not a flight risk, a threat to the safety of the officer, or capable of resisting arrest. State law excessive force claims remained at issue as to the second use of the Taser. Rakestrau v. Neustrom, #11-CV-1762, 2013 U.S. Dist. Lexis 51182 (W.D. La.). Keywords: flee.

A prisoner caused a commotion in his cell to object to what he thought were unreasonable restrictions on exercise and telephone use. Several officers entered the cell, and allowed the prisoner’s cellmate to leave. The prisoner was told to remain facing the wall, but turned his head away from the wall to speak to an officer. A Taser was then fired in the dart mode into the prisoner’s body. The prisoner claimed that the officer “tricked” him into turning his head so as to create an excuse to discharge the Taser and that the officer then continued to apply the Taser to him for an unreasonable length of time although he offered no resistance or provocation. He also claimed that, when he was escorted to the prison infirmary, he was intimidated into signing a form which refused medical treatment for the injuries he allegedly received as a result of the Taser application. The court found that the prisoner’s claims were time barred by a one year statute of limitations. While the statute of limitations was tolled (extended) while the prisoner pursued an administrative grievance over the incident, more than one year elapsed after the grievance was resolved before he filed his lawsuit. A state court filing seeking judicial review of the grievance did not extend the time for filing the lawsuit as it did not assert his federal claim. Cook v. Lamont, # 11-00358, 2013 U.S. Dist. Lexis 11138 (M.D. La.).

RESTRICTIVE: During a traffic stop, police arrested a passenger in the vehicle under an existing warrant. While that passenger was being handcuffed, a second passenger was subjected to a consensual protective pat-down search. He claimed that he made a remark because the officer’s hand remained on his crotch for too long. Two officers, he said, then struck him with a baton 13 times and one used a Taser in dart mode three times. A federal appeals court declined to hear an appeal of a rejection of qualified immunity for the use of force because the officers, according to the plaintiff’s version of the events, immediately resorted to the use of both the baton and Taser without trying to use physical skill, negotiation, or even commands, and the undisputed facts did not show that he resisted either the search or arrest. Additionally, the facts did not justify treating the plaintiff as posing a serious threat since two videos of the incident did not indicate that he had reached for his waistband, held a weapon, or tried to strike an officer. An appeal of the denial of qualified immunity was not proper because of disputed issues of fact. Newman v. Guedry, #11-41192, 2012 U.S. App. Lexis 26205, 2012 WL 6634975 (5th Cir.). In an earlier decision, an appeal in the case by the plaintiff of a ruling dismissing three defendants, but leaving two defendants in the case was dismissed as premature because it was filed before there was a final order disposing of all claims and all parties. Newman v. Dunchamp, #11-41252, 2012 U.S. App. Lexis 26258 (5th Cir.). In a subsequent appeal, the court ruled that the plaintiff’s challenge of an alleged municipal policy establishing “zero tolerance” zones which supposedly led to his detention was time-barred. Newman v. Coffin, #11-40624, 464 Fed. Appx. 359, 2012 U.S. App. 5489 (Unpub. 5th Cir.).

RESTRICTIVE: A motorist fled from a traffic stop on foot. He claimed that he turned around and held out his hands in an effort to surrender. He was holding an iPod. An officer fired a Taser in the dart mode at him, causing him to fall to the ground. The arrestee claimed that an officer hit him while he was lying on the ground, repeatedly shocked him with the Taser while he was on the ground and no longer resisting arrest, and then, after he was handcuffed, slammed him back on the ground, causing a Taser probe to come out of his chest. While the initial use of the Taser was justified, as the officers did not know that the object in the plaintiff’s hand had been an iPod rather than a weapon, they were not entitled to qualified immunity on the subsequent uses of force, including subsequent activations of the Taser, based on the plaintiff’s version of the incident. The medical records did not blatantly contradict the plaintiff’s version of the incident or his claims about his injuries. Anderson v. McCaleb, #11-40237, 2012 U.S. App. Lexis 12209 (Unpub. 5th Cir.). Keywords: flee, handcuffed.

A police officer deployed a Taser in the dart mode once on the daughter of a woman who another officer was struggling with in their home. The officer who used the Taser was entitled to qualified immunity on an excessive force claim as a video recorded by the Taser’s camera clearly showed the daughter trying to hit an officer in the back of the head before the Taser was fired, making the use of force objectively reasonable. Bolton v. City of Gulfport, #1:10-cv-297, 2012 U.S. Dist. Lexis 173818 (S.D. Miss.).

Police observed a man at night who they said was swinging a baseball bat at passing traffic on a highway. He later denied doing so. The officers said that he eventually put down the bat in response to their orders, but that he failed to obey orders to move away from it. When it looked like he was again reaching for it, the two officers used their Tasers in the dart mode from a distance. This did not incapacitate him, and he picked up the bat, raised it over his head and started to advance towards one of the officers. Two officers present shot and injured him, and he was taken to a hospital. He was later convicted of simple assault on an officer. The court found no basis for an excessive force claim under the circumstances, and granted summary judgment to the officers, in part based on the plaintiff’s conviction for assaulting an officer. The use of the Taser was justified by the plaintiff’s non-compliance with orders to move away from the bat and attempt to move towards it. Buchanan v. Gulfport Police Department, #1:08CV1299, 2012 U.S. Dist. Lexis 732095 (S.D. Miss.).

An officer pointed a Taser at a man that he was arresting during an undercover drug buy. When the arrestee refused to comply with orders to show his hands, the officer deployed Taser in the dart mode. One probe attached to the arrestee’s right upper arm and the other to his right chest area. When the arrestee again refused to comply with orders and tried to reach towards his car console, the officer pressed the Taser’s trigger again. The arrestee was then removed from his car. The manufacturer of the Taser was entitled to summary judgment on products liability claims based on the arrestee’s assertions that the Taser “caused multiple burn marks” on his body, caused nerve damage, and rendered him unconscious. The court found that the plaintiff failed to show that the manufacturer’s warnings were inadequate or that the product was unreasonably dangerous. Gray v. Taser Int’l, Inc., 11-1802, 2012 U.S. Dist. Lexis 45515 (W.D. La.). In subsequent decisions, the court found that the plaintiff failed to show that emergency medical workers provided inadequate care after the incident, Gray v. Taser Int’l, Inc., #11-1802, 2012 U.S. Dist. Lexis 53994 (W.D. La.), or that the officers’ use of force was unreasonable. Gray v. Taser Int’l, Inc., #11-1802, 2012 U.S. Dist. Lexis 54006 (W.D. La.). Keywords: products liability.

While officers were arresting a number of men for possession of crack cocaine, another man allegedly ran up to the arrestees’ vehicle, grabbed some baggies containing drugs, and ran off, with officers giving chase. An officer yelled at him to stop and stated that he would use a Taser on him if he did not. The suspect continued to run, going towards one of the officers. The Taser was fired in the dart mode, hitting the suspect in the chest. A physical struggle between him and the officer followed, during which the suspect disarmed the officer, grabbing his Taser. Another officer, observing this, fired his own Taser in the dart mode, hitting the suspect in the back. Because the suspect appeared to be unaffected, and continued to struggle, a Taser was applied in the stun mode to the suspect’s upper arm. Officers were subsequently able to handcuff him. He then appeared unresponsive. His breathing ceased and no pulse could be detected. He was subsequently pronounced dead. A lawsuit claimed that the use of the Taser caused the decedent to suffer cardiac arrhythmia and/or respiratory seizures resulting in his death. Claims were made against officers for excessive use of force and against the manufacturer of the Tasers for product liability. The trial court granted motions for qualified immunity by the officers, and granted the manufacturer’s motion for summary judgment on the product liability claims. The court rejected claims that the Taser was defectively designed and was unreasonably dangerous to use, causing the decedent’s death. The plaintiff failed to show that “a feasible design alternative exists that would have prevented the harm without impairing the ‘utility, usefulness, practicality or desirability’ of Taser’s ECD product.” Claims for manufacturing defects and failure to adequately warn were also rejected. On the qualified immunity claim, the court found that the officers’ deployments of their Tasers, under the circumstances, were not objectively unreasonable, as the decedent was actively resisting arrest, had fled with drugs in hand, ignored warnings about being Tasered, and “appeared unfazed” after the Taser was used on him, continuing to struggle. Municipal liability claims were also rejected. Williams v. City of Cleveland, Miss., #2:10cv215, 2012 U.S. Dist. Lexis 117559, 2012 WL 3614418 (N.D. Miss.). Summary judgment for the defendants was subsequently upheld by a federal appeals court. It held that the plaintiff had produced no evidence that the product warnings were inadequate, that isolated incidents did not prove that the city’s training programs were inadequate, and that qualified immunity was appropriate for the officers who used reasonable force when the arrestee continued to pose a threat to them throughout the altercation. Williams v. City of Cleveland, #12-60759, 2013 U.S. App. Lexis 22205 (5th Cir.). Keywords: cardiac, flee, products liability.

Police were summoned when a schizophrenic man stopped taking his medication and marched around his trailer saying he was a soldier. He also broke a furniture chest, causing his girlfriend to fear what he would do next. The officers had knowledge of prior episodes in which he had driven his truck onto train tracks to collide with an oncoming train and another in which he dove off of a second story balcony because he thought police were shooting laser beams through the wall at him. Officers tried to calm him down when they arrived, but he yelled at them, ran away, and at one point ran towards one officer and in the direction of a busy street. The officer used the Taser in dart mode, and he calmed down and was taken to a hospital for treatment, including a minor abrasion on his chest from the Taser. The court found that the force used was objectively reasonable. The officer could reasonably believe that the man either posed a risk to him or that he was at risk of running into the busy street and endangering his own life. Jez v. City of Waveland, #1:10CV570, 2012 U.S. Dist. Lexis 7048 (S.D. Miss.). Keywords: mental.

A pregnant woman in custody at a jail was asked to take a TB test, and a struggle ensued when she declined. She claimed that two officers entered her cell and used a Taser on her in the dart mode at least three times, and then administered the TB test with a needle. One of the Taser probes stuck in her chest. She claimed that she was hurt by the use of excessive force, and that jail personnel restrained her while medical personnel tried twice to retrieve the Taser probe before it was removed from her body. In addition to excessive force and other claims against jail personnel, she asserted a products liability claim against the Taser manufacturer. She failed to identify the model of the Taser which was used on her, and claimed that the manufacturer did not include proper instructions as to when it could cause death or serious injury. She gave no specifics to support this claim, or her general statement that the Taser was “probably more dangerous” than a gun, that was a pure speculation unsupported by any claimed facts. The magistrate, therefore, recommended that the claim against the manufacturer be dismissed. Jefferson v. Grayson County, #4:11CV143, 2012 U.S. Dist. Lexis 61430 (E.D. Tex.). The magistrate further recommended that the claims against the county sheriff’s department should be dismissed, since the department was not a different entity from the county, and could not be separately sued. Jefferson v. Grayson County, #4:11CV143, 2012 U.S. Dist. Lexis 61431 (E.D. Tex.). The magistrate also recommended that the county’s motion to dismiss those defendants who were not properly served be granted. Jefferson v. Grayson County, #4:11CV143, 2012 U.S. Dist. Lexis 87494 (E.D. Tex). Keywords: pregnant, products liability.

A Texas man complained of chest pains and a passing motorist called 911. A lawsuit claimed that police responded and officers disregarded his medical needs, shot him with a Taser and struck him with a baton and flashlights. Enroute to the hospital, he purportedly went into cardiac arrest and died. The plaintiffs agreed to dismiss Taser International from the civil action against the city and officer, which was still pending. Terrell v. City of La Marque, #3:11-cv-00229 (S.D. Tex., March 8, 2012). Plaintiff’s Complaint. Taser Dismissal Stipulation. Keywords: cardiac.

A man who claimed that he suffered cardiac arrest after a Taser was used in the dart mode sued Taser International for manufacturing defects, inadequate warnings, design defects, and breach of warranty. None of the officers were sued, so that the justification for the use of a Taser was not an issue. The Court noted the plaintiff offered no proof that the Taser at issue deviated in a material way from the manufacturer’s specifications or from otherwise identical units, thus defeating the manufacturing defects claim. Additionally, the inadequate warnings, design defects and breach of warranty claims failed because there was no evidence to support those allegations. Finally, although a products liability claim might be sustainable without expert testimony, that is not the case here, and the plaintiff failed to produce expert testimony to support his claim. Summary Judgment was granted to the manufacturer. Patterson v Taser International, #3:10-cv-00057, 2011 U.S. Dist. Lexis 88346 (N.D. Miss.). Keywords: products liability.

RESTRICTIVE: The City of Fort Worth, Texas 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. The Medical Examiner’s office had labeled the death as a “homicide” and indicated the cause as a “sudden death during neuromuscular incapacitation due to application of a conducted energy device.” 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. 2011). Complaint. After the city settled with plaintiffs, the plaintiffs sued Taser International, Inc. in Texas state court, alleging a failure to warn. Taser was awarded summary judgment on that claim. An appeal of that summary judgment was voluntarily dismissed. Jacobs v. Taser International, #03-12-0074-CV, (Tex. App. 2013). Keywords: mental, products liability.

Police asked a woman to leave a man’s trailer, and the officers pulled her from it. Once outside, she claimed to have asked to retrieve her crutches from inside, and said that the officers yelled at her to stand up and used a Taser on her without reason to do so. The officers said that the woman, when encountered inside the trailer, was yelling about people “coming through the floor.” She had drunk alcohol and may have used cocaine. Once outside the trailer, they stated, she chased an officer with a plastic bug guard off of a nearby car and threatened to hit him with it. The Taser was first used in dart mode from ten feet away, and appeared to have no effect. Two more five second cycles were used, and then the Taser was used on her several times in the stun mode as she continued to resist handcuffing and kicked at the officers. The Taser was also used to enable the officers to restrain her feet. The court rejected claims for supervisory or municipal liability for excessive use of force. The city’s written policy and training program regarding the use of Tasers was neither vague nor inadequate. Constant v. City of Baytown, Civ. #H-04-0594, 2006 U.S. Dist. Lexis 70047 (S.D. Tex.). Keywords: disabled, handcuffed.

Responding to a report of criminal damage at a shopping mall, a sheriff’s deputy encountered a main wielding a pipe. A Taser in the dart mode was deployed for two cycles. After the barbs were removed, the man struck the deputy with the pipe and fled. Intercepted by other officers, he swung the pipe. Another deputy fatally shot the man three times with his firearm. The autopsy report indicated that that he died from multiple gunshot wounds. A suit was filed against Taser International, for providing inadequate warnings and training regarding its product. The manufacturer was given a summary judgment. The plaintiffs failed to even remotely establish that the Taser harmed the deceased, which is a material element for liability. Gosserand v. Parish of Jefferson, #05-5005, 2006 U.S. Dist. Lexis 81818 (E.D. La.). Keywords: products liability.

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