Police Taser Use

by H. Troy Nicks, J.D., Instructor, Central Virginia Criminal Justice Academy, Email: troy.nicks@lynchburgva.gov

In January 2016, the U.S. Fourth Circuit Court of Appeals handed down a decision arising in North Carolina that addressed permissible use of Taser electronic control devices by police. The Court’s analysis and ruling reflect a significantly different assessment regarding appropriate Taser use than many police officers have traditionally employed.

The police use of “less than lethal” devices such as Taser and pepper spray (also called OC spray, after its active ingredient oleoresin capsicum) evolved during the past few decades in response to a perceived “gap” in the spectrum of force levels available to police to control resisting subjects. This gap was believed to exist between the lower range of force levels, e.g., control holds and takedowns, and, at the upper range, impact weapons such as police batons (“nightsticks”) and firearms.

As police employment of Taser devices and pepper spray evolved, however, these tools began to be viewed as an acceptable means of dealing with generally non-cooperative subjects. Pepper spray was sometimes referred to as “the man in the can”, and both devices were touted by some officers such that “you’ll never have to put your hands on them again.” That context is relevant to the unfortunate circumstances that led to the 4^th Circuit’s opinion discussed in this article.

Estate of Ronald Armstrong v. Village of Pinehurst ¹

In this case, the decedent Armstrong had been diagnosed with bipolar disorder and paranoid schizophrenia. In April of 2011, he’d been off his meds at home for several days and was poking holes in his legs to “let the air out”. His sister persuaded him to accompany her to a hospital for an evaluation. During the evaluation, however, he became frightened and left the hospital.

Based on Armstrong’s medical history and present behavior, the examining physician initiated an involuntary commitment paper, designating Armstrong as a danger to himself but not a danger to others. A Pinehurst police officer soon responded to the scene and located Armstrong at a street intersection near the hospital’s entrance.  Armstrong was wandering in the road but the officer was able to convince him to come out of the road. A police sergeant and lieutenant arrived minutes later.

Although North Carolina law may have authorized the officers under the circumstances to make their own decision to take Armstrong into custody to prevent him from harming himself, they chose to wait at roadside with him for approximately 20 minutes until the commitment paper process was finalized. Up to this point, Armstrong had been calm and cooperative. However, he was eating grass and putting cigarettes out on his tongue.

When advised that the commitment paper had been signed off, the three officers surrounded Armstrong and ordered him to come with them. His reaction was to sit and wrap his arms and legs around a four-by-four stop sign post. The officers then tried unsuccessfully to pry him loose. At this point, two hospital security guards had arrived on scene as well as Armstrong’s sister who was pleading with him to return to the hospital. Within less than a minute after being advised of the commitment paper being issued, the lieutenant directed the officer to prepare to use his Taser against Armstrong. The officer set his Taser to the “drive stun” mode and gave a verbal warning which had no effect. The officer then activated his Taser five separate times over a two minute period. Armstrong’s reaction was to increase his grip on the post. ²

At that point, the three officers with the assistance of the two security guards were able to pull Armstrong off the post and place him face down on the ground. He struggled while being handcuffed and, when he continued to kick against the officers, his legs were shackled. Within seconds, the sister noticed that Armstrong seemed to be unresponsive and asked the officers to check him.  They immediately did so and found him to be turning blue and not breathing. CPR was initiated and Armstrong was transported the short distance to the hospital, where he was soon pronounced dead. Six and a half minutes had elapsed between the time the officers were advised that the commitment paper had been issued and the time they radioed for an EMS response.

(It is noteworthy that the fact that Armstrong died was not a factor in the Court’s analysis. That aspect was scarcely mentioned, and nowhere does the opinion imply that use of a Taser is per se deadly force.)

The sister, as representative of Armstrong’s estate, filed a 42 USC 1983 lawsuit under federal civil rights legislation, alleging that the force police used against Armstrong when seizing him was excessive and in violation of the Fourth Amendment. At the trial level, the defendant officers were granted summary judgment on grounds that they were entitled to qualified immunity. The sister then appealed to the Fourth Circuit (whose jurisdiction extends throughout North and South Carolina, Virginia, West Virginia and Maryland, thus setting forth controlling law for Virginia law enforcement agencies).

The Circuit Court began by analyzing the application of qualified immunity to the facts of this case. The term “qualified” refers to the two prongs of this analysis, which provide that officers are protected from suit if:

1. The officers involved did not violate a Constitutional right, or
2. If a violation did occur, the law concerning the issue was not “clearly established” at the time of the violation

The bulk of the ensuing discussion by the Court involved the first prong of the above analysis, although it was also necessary for the Court to analyze the second prong in order to reach its ruling.

Constitutional Violation

The body of law that addresses reasonableness under the 4^th Amendment regarding the use of force by police when seizing citizens is huge. Apart from case law specifically covering police use of deadly force, perhaps the most authoritative pronouncement concerning reasonable force generally is the U.S. Supreme Court case of Graham v. Connor ³. In that case, the Court set out three determinative factors:

1. The severity of the crime involved,
2. The immediate threat to the safety of officers and others, and
3. Whether the subject is actively resisting officers or attempting to flee.

These three factors coalesce in the concept of proportionality as related to the nature of force employed by police, under all existing circumstances.

The Armstrong Court then proceeded to examine each of those three factors in light of the facts in this case. As we will see, the outcome of that analysis was not favorable to the officers.

The first factor, the crime involved, was a non-starter for the police side of the lawsuit. Execution of a mental detention order is a civil matter, not criminal, and the officers did not argue on appeal that there was any basis to arrest Armstrong on a criminal charge. The Court went so far to say that even if, arguably, Armstrong’s refusal to obey the officers’ commands has been a basis for a criminal charge, the offense would be a minor one and thus this first factor would still weigh against the officers.

The Court’s analysis further noted that the relevance of the “crime involved” factor is, at bottom, a proxy for potential dangerousness of the person involved. In other words, a mentally ill person could potentially, like a criminal, be dangerous. A lengthy discussion of this possibility also went against the officers. While the Court recognized that diminished mental capacity is a factor worth consideration in terms of reasonable force levels, it was reasoned that criminals generally pose a greater potential risk to the safety of others than do the mentally ill. Furthermore, dealing with an unarmed, emotionally distraught person offering a low level of resistance should take into account tactics designed to calm and de-escalate the person’s emotional state. The Court also noted that, although the record was unclear whether the officers knew that the commitment paper designated Armstrong as a risk to himself but not to others, the officers did speak with the nurse involved with processing the commitment paper. The officers also had the opportunity to observe Armstrong for over 20 minutes while waiting for the paper to be issued, during which time he exhibited no behavior suggesting that he was a risk to attempt escape or to attack others.

The Court concluded that the first Graham factor weighed against the officers in light of the fact that Armstrong had committed no crime, or at most a minor one, and that his mental status gave no indication that he was otherwise a dangerous person.

The remaining Graham factors, however, offered some basis for the officers to believe Armstrong was a threat to the safety of others or was an escape risk. He had been observed wandering into an active roadway with little regard for passing traffic and he was still located only a few feet from the road when moved to seize him. It was conceivable that Armstrong might lurch into the path of a vehicle which, in an attempt to avoid him, might cause a head-on collision. Furthermore, Armstrong fled from the evaluation (although he did not go far). Altogether there was some basis, the Court reasoned, for the officers to believe that he might attempt to flee rather than return to the hospital.

On balance, then, the application of the facts of this case to the Graham factors justified some level of force to take Armstrong into custody. What that level of justifiable level of force was invokes an analysis of the concept of proportionality.

The circumstances, as the Court saw them, were these: Armstrong was 5’11” tall and weighed 262 pounds (a reasonable inference is that those were not “quality” pounds – otherwise the record would probably reflect the contrary). He was stationary and his evident intent was to remain so, not to flee. Importantly, he had offered no inclination toward violence and was surrounded by officers. In the Court’s view, this was not an urgent situation – it was a “static impasse”. In that context, the Court reasoned that the officers’ near-immediate resort to using a Taser was not proportional to the limited need for force.

The Court then engaged in a lengthy discussion, citing several other Circuits, of the view that deploying a Taser is a “serious use of force” that involves “excruciating pain”, whether used in “dart” mode or “drive stun” mode. ⁴  Further noted was the Taser manufacturer’s warning that the drive stun mode might not be effective against emotionally disturbed persons and that repeated drive-stuns should not be used against such persons if compliance is not achieved. The Court also cited its own precedents holding that repeated Taser use after a subject had been disarmed was not proportional to the threat involved.

The Court dismissed any distinction in characterizing a subject’s resistance as “active” or “passive” or whether the person has not yet been restrained as being a determinant of permissible Taser use. A subject who is simply non-compliant, or even one who is resisting non-violently, is not per se a threat to safety.

Here, the Court has focused on the element where law enforcement practice has to an extent gone off track - the use of Tasers against persons who are essentially just not cooperating with police efforts to take them into custody. The author has noted, in reviewing use of force policy guidance of various agencies, ambiguities in the stated definitions of terms such as “passive” and “active” resistance as those definitions relate to authorized force techniques. When policy is unclear in that manner, officers are left without effective guidance about handling a subject whose only manifestation of resistance is to “lock down” as Armstrong did. A better approach, it is submitted, is to articulate use of force policy in terms of specific threat factors – behaviors indicating escape, statements and/or actions indicating risk of violence toward officers or others, de-escalating force when threat factors subside, etc.

The Court then announced its broad conclusion that a “serious injurious force” such as a Taser may only be used when “an objectively reasonable officer” would conclude that “risk of immediate danger could be mitigated by the use of force” and, furthermore, that “physical resistance” does not necessarily equate to danger.

Applying that holding to the facts of this case, the Court found that the officers’ resort to Taser use after lesser levels of force were not immediately successful, and in the absence of any emergency or safety risks, was excessive force and a 4^th Amendment violation. The opinion’s analysis then shifted to the second prong of the qualified immunity doctrine.

Whether the Constitutional Violation was Clearly Established Law

In determining whether the facts surrounding the Taser use against Armstrong been previously identified by established law as a Constitutional violation, the Armstrong Court noted the principle that officials must have fair notice that certain actions are unlawful, and therefore laws must address those issues at a sufficiently particular level of detail.

The Court then determined that, in the Fourth Circuit at least, the clear precedent cases holding that Taser use was excessive dealt with situations where subjects had already been successfully restrained by officers. Furthermore, the Court’s examination of cases decided by other Circuits reflected a significant split, or at least ambiguity, in holdings concerning Taser use to facilitate arrest of non-violent but agitated and unrestrained subjects, and some decisions even approved Taser use in situations of “bare noncompliance”.

Accordingly, the Court found that the law concerning the use of a Taser under the Armstrong facts was not clearly established at the time of his seizure by police. The Court therefore further found that the officers were entitled to qualified immunity and that the trial court was correct in granting summary judgment in their favor. The Court, however, made a point of stating that its ruling only protected the officers involved in this case and that “law enforcement officers should now be on notice that such Taser use violates the Fourth Amendment” ⁵.

Conclusion

At minimum, agencies in the five states comprising the Fourth Circuit’s jurisdiction should review their use of force policies for any ambiguities or conflicts with the guidance set forth in the Armstrong case. More challenging are the more general implications regarding the readiness and capabilities of officers to employ lower levels of force when circumstances require.

Much attention in recent years has focused on police-involved shootings, especially when racial factors are alleged to have been involved. Less attention has been given to police use of less-than-lethal force levels. Contrary to the police mantra cited at the start of this article, to the effect that the availability of Taser and pepper spray eliminates the need for officers to put hands on people, the Armstrong decision underscores the fact that hands-on techniques are still an essential part of the field officer’s tool kit.

The author’s experience is that many officers receive their last intensive training on physical control techniques (commonly labeled “defensive tactics”) during recruit training. Thereafter, such training opportunities for many veteran officers are infrequent. That factor, along with HR constraints that make it difficult to prioritize physical fitness in the hiring and retention processes, create a likelihood that officers may be incapable of using lower levels of force effectively when needed. Perhaps it should also be noted that government officials, budgeteers and the public have little idea of how important strength and stamina are in a full-on struggle to control a resisting subject without injuring the person.

A tendency these days is to see technology as a panacea for many endeavors. The Armstrong decision, however, is our wakeup call that ignoring traditional methods such as hands-on techniques can set officers up for failure.

¹  810 F.3d 892 (4th Cir. 2016)

²  The Court recited evidence indicating that the Taser in this case had two operating modes. The “dart” mode fires electrodes from a standoff distance into a subject’s body and delivers an electric charge that “paralyzes” the subject. The “drive stun” mode, used in this case, involves the operator holding the Taser in contact with a subject’s body and triggering an electrical charge that does not incapacitate the person but causes pain, in an effort to cause the subject to comply with officer commands. The Court stated that its conclusions about the severity of taser use would be the same regardless of which mode had been used because both cause “extreme pain”.

³  490 U.S. 386, 109 S. Ct. 1865 (1989)

⁴  At several points in the Armstrong opinion, the Court includes pepper spray in the same category as Tasers, in terms of being devices employed to gain compliance by inflicting serious pain. Conventional legal interpretation might regard those references to pepper spray as obiter dicta (discussion not necessary to the Court’s actual decision) and therefore not constituting authoritative precedent. However, the 4^th Circuit’s own precedents, cited in Armstrong, support that view. A prudent approach by the law enforcement community, therefore, would be to conform policy and training such that the same guidelines are applied to both Taser and pepper spray use.

⁵  Kent v. Oakland County, 810 F.3d 384 (6^th Cir. 2016) arose in Michigan and was decided the same month as the Armstrong case. In the Kent case, the plaintiff became distraught and argumentative with EMS and officer responders who prepared to attempt resuscitation on the plaintiff’s father. The plaintiff, a physician, insisted that his father had been suffering from chronic illness, was clearly dead and that his father had executed a “living will” requesting that no “heroic measures” be taken in such a situation. The paperwork was not readily available, however, and the EMS personnel requested officers to remove the plaintiff from the room so they could proceed with resuscitation. When the plaintiff continued to argue in a distraught manner, an officer used a Taser on him. The Court held that Taser use under those circumstances was excessive force under clearly established law, at least in the 6^th Circuit and upheld the trial court’s denial of immunity.