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September 26, 2008

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New TASER decision has extra meat for law enforcement

Provided by Force Science News

A case involving the stun-drive Tasering of a handcuffed arrestee was decided this month by a federal Court of Appeals panel in Florida, with some instructive language regarding what’s permissible in the handling of passively resisting subjects by an officer working alone.

In assessing a deputy’s actions in delivering Taser shocks to an arrestee who would not get off the ground to be moved to a patrol car, the panel ruled 2-1 on Sept. 9 that:

    • applying Taser prongs in an effort to motivate a nonviolent subject to stand up was not excessive force under Section 1983 of the federal Civil Rights Act;

    • to conserve valuable police time and energy, “the government has an interest in arrests being completed efficiently and without waste of limited resources”;

    • an officer’s call for backup “does not make the use of force before reinforcements arrive unreasonable” per se;

    • indeed, a single officer confronting a non-compliant suspect “need not…wait idly for backup to arrive to complete an otherwise lawful arrest.”

With its ruling, written by Chief Judge J. L. Edmondson, the 11th circuit appellate court reversed a U.S. District Court decision that had judged the deputy guilty of “grossly disproportionate and unnecessary” force for applying the Taser in a pain-compliance mode.

“The language in this decision is outstanding in its importance to law enforcement,” says Wayne Schmidt, executive director of Americans for Effective Law Enforcement, the nonprofit organization that monitors police- and corrections-related cases and provides legal guidance through its popular training seminars. “This decision goes beyond mere commentary on Taser use.

“Single officers faced with uncooperative subjects are often uncertain about what constitutes reasonable force in their situations. This court shows a realistic understanding of the challenges they face.”

Like many appellate actions, this decision is unpublished, which means it is not binding on lower courts, Schmidt explained to Force Science News. “But I believe it will still be cited for the moral and persuasive authority of its reasonable arguments.”

THE INCIDENT.

The case grew out of a traffic stop by Deputy Jonathan Rackard of the Washington County (FL) S.O., initiated on a speeder named Jesse Buckley on a dark, rural 2-lane highway one March night nearly 5 years ago. The incident was captured on in-car video and can be viewed here.

The 23-year-old violator, “financially destitute and homeless,” became agitated and “began to sob” over getting a ticket. Despite repeated requests, he refused to sign the citation, as required by state law. “Arrest me,” he said.

Rackard did. Buckley submitted to handcuffing without resistance, wrists behind his back. But as Rackard started to walk him toward the patrol car, Buckley “dropped to the ground behind his car, crossed his legs, and continued to sob,” according to the appellate court’s recounting of the incident.

Rackard cautioned him about the danger of getting hit by traffic on the nearby roadway. “My life would be better if I was dead,” Buckley responded. Rackard asked him “several times” to stand up. Buckley wouldn’t. The deputy tried to lift the 6 ft., 180 lb. subject to his feet. Buckley went limp and wouldn’t get up. Rackard repeatedly warned him that unless he cooperated, a Taser would be used against him. “I don’t care any more,” Buckley shouted. “Tase me!”

After allowing further time for compliance, the deputy pressed the Taser against Buckley’s clothed back in stun-gun fashion and initiated a 5-second burst. Buckley slumped forward and moved around, causing Rackard to struggle to maintain contact with the prongs…but the suspect still would not get off the ground. A second Tasing resulted in the same continued resistance.

Rackard walked to his patrol car and radioed for backup. In the 5 minutes before another deputy pulled up, Rackard issued more commands for Buckley to stand, tried again unsuccessfully to lift him to his feet, and finally applied the Taser a third time after a plain warning. Nothing worked—until the backup arrived. Then Buckley “promptly relented” and was escorted to the patrol car “without incident.”

Buckley’s physical injuries consisted 16 “small burn marks,” with some scarring and keloid growth around some of them. (The total reflected the fact that Taser contact was broken by Buckley’s movement and had to be reestablished several times across the 3 zappings to complete the cycles.) Buckley also alleged emotional suffering, claiming that he “now finds it difficult to trust police officers and to ask for their assistance.”

Although he pleaded no contest to charges of refusing to sign the speeding ticket and to resisting arrest and “does not quarrel with his lawful conviction” on those counts, he filed suit against Rackard and Sheriff Bobby Haddock for violating his constitutional rights under the 4th Amendment.

LOWER COURT FINDING.

The U.S. District Court for northern Florida denied Rackard’s motion for summary judgment on the basis of qualified immunity and held that he had used excessive force.

If the deputy had used his Taser just once, that “might arguably have been reasonable,” the lower court said, but the additional applications “were grossly disproportionate and unnecessary, especially given that the arrestee had been ‘fully secured’ and given that backup was en route.” If Rackard had “simply waited for backup, 2 officers could have lifted [Buckley] and carried him to the [patrol] car without any application of force,” the court declared.

In addition to the repeated Tasing, the court “placed considerable stress” on the fact that Buckley was handcuffed and resisted only passively. Indeed, it described the situation as “analogous” to the circumstances in a 2002 11th Circuit case, Lee v. Ferraro (284 F.3d 1188). The officer in that case had pulled over a young woman for a minor traffic violation, forced her out of her car, handcuffed her, and led her to the back of the vehicle where he spread her legs with his foot and slammed her head against the trunk lid, although she did not resist the officer at any time.

Like her, the District Court said, Buckley “posed no threat to the deputy or anyone else and…never actively resisted or attempted to evade arrest by flight.” Buckley’s attorney had relied heavily on Lee in arguing his case.

APPELLATE REVERSAL.

The Lee decision “does not control” the Buckley case, the Court of Appeals ruled emphatically in reversing the District Court’s judgment. Lee pertained where force that was “wholly uncalled for” was used against a subject who was “resisting arrest in no way.”

Buckley, in contrast, “did resist,” albeit passively, by dropping to the ground, refusing to comply with reasonable orders, ignoring warnings that he would be Tased, and refusing to stand when lifted. The differences are “easily distinguishable” and Lee “decides nothing” about the gamut of force options appropriate for dealing with arrestee intransigence.

The appellate court was not judging whether Rackard used the best option for carrying out the arrest—only whether his conduct was “reasonable in the constitutional sense,” the decision noted. Chief Judge Edmondson cited several compelling factors in Rackard’s support.

Safety was an issue. “[T]he incident occurred at night on the side of a highway with considerable passing traffic,” the decision pointed out. “[S]ome 14 vehicles passed nearby…during the approximately 8 minutes that the deputy and [Buckley] were both exposed on the roadside…not inside a car.” The government’s “legitimate interest” in the safety of the deputy, the violator, “and even passing motorists” would have been “advanced by putting [Buckley] in the patrol car.”

Buckley’s resistance delayed completion of the arrest. Even though his refusal to sign the citation was relatively minor, “the government [has] a significant interest in enforcing the law on its own terms, rather than on terms set by the arrestee,” the decision declared. Arrests need to be “completed efficiently and without waste of limited resources: police time and energy that may be needed elsewhere at any moment.”

Although handcuffed, the suspect remained a potential threat. Buckley “refused repeatedly to comply with the most minimal of police instructions—to stand up and to walk to the patrol car.” That he “did not attack or menace the deputy does not shield [him] from the use of force, even if it might result in pain….

“Never was [he] fully secured until after the second officer arrived. [He] was not bound at the feet (so, he could both run and kick),” he remained at risk near the highway, and he continued his defiance, despite Rackard’s pleas and warnings. “An objectively reasonable police officer could rightly believe that force was therefore necessary to…complete the arrest.”

Availability of backup was not an issue. “The federal courts must not dictate…how the police should allocate their limited resources….No constitutional basis exists for requiring 2 or more officers to make routine arrests, even if deploying more officers might result in less force actually being used…. That an officer has requested more police assistance does not make the use of force before reinforcements arrive unreasonable….

“A single officer in the deputy’s situation, confronting a non-compliant arrestee like [Buckley], need not—as a matter of federal constitutional law—wait idly for backup to arrive to complete an otherwise lawful arrest….

“[O]fficers acting alone may not always use any and all force necessary to complete an arrest without assistance. If Deputy Rackard had used more severe techniques (beaten [Buckley’s] head with a club or shot him, for example), this case would be a different case.

“[But] Rackard only used moderate, non-lethal force; and he did so only after reasoning with [Buckley], then after trying to lift [him], and finally after repeatedly warning [him]—a warning given before each use of the Taser—that a Taser would be used….Even then, [Buckley’s] injury was not great….”

In conclusion, the Court noted: “We must always recall that police officers are making hard decisions under difficult circumstances and within severe time constraints. Such decisions are easy to criticize later….

“[But] this case is not one where a compliant arrestee was abused for no good reason….In the light of all the circumstances, therefore, we conclude that Deputy Rackard’s use of force was not constitutionally excessive.”

A heated, 17-page dissent was written by Judge Beverly Martin, a member of the appellate panel from Georgia. She argued that Rackard could have used “any number of less injurious, more effective and safer forms of pain-compliance techniques” and that his employment of “an electric prod” (the Taser) “repeatedly against a peaceful individual” was nothing other than “the infliction of gratuitous pain and injury” in violation of the 4th Amendment.

If you Google Deputy Rackard’s name, you’ll find more about the case on the Internet, including a number of commentators in the blogosphere who agree with Judge Martin’s dissent.

To read the full decision of the Court of Appeals, click here.

NOTE: Although unrelated to the issues of the Buckley/Rackard case, AELE has an enlightening article in its current Monthly Law Journal about litigation and liability related to claims of excessive force caused by “overly tight” handcuffing. The Journal can be accessed free of charge here.

Special note:

Are you up to date on critical lethal and less-lethal force issues?

A thorough updating on court cases and guidelines regarding the reasonable use of force will be presented at the renowned Lethal and Less-Lethal Force Workshop, sponsored by Americans for Effective Law Enforcement Oct. 20-22 in Las Vegas.

Faculty members will include attorney Michael Brave, the nation’s leading authority on Taser-related legal matters; Greg Meyer, an advisory board member of the Force Science Research Center and an expert on lethal and less-lethal force options; Dr. John Peters, noted authority on excited delirium and in-custody deaths; and Judge Emory Plitt Jr., well-known for his expertise in police liability issues.

Also on the program will be Dr. Bill Lewinski, executive director of the Force Science Research Center and Dr. Alexis Artwohl, an FSRC board member and former police psychologist. Lewinski and Artwohl will address the latest research in biological, physiological, and psychological aspects of deadly force encounters.

For more information or for registration for this cutting-edge conference, contact AELE’s Law Enforcement Legal Center at 800-763-2802 or visit the AELE website at www.aele.org.

About the author

The Force Science Institute was launched in 2004 by Executive Director Bill Lewinski, PhD. - a specialist in police psychology -- to conduct unique lethal-force experiments. The non-profit Force Science Institute, based at Minnesota State University-Mankato, uses sophisticated time-and-motion measurements to document-for the first time-critical hidden truths about the physical and mental dynamics of life-threatening events, particularly officer-involved shootings. Its startling findings profoundly impact on officer training and safety and on the public's naive perceptions.

For more information, visit www.forcescience.org or e-mail info@forcescience.org. If you would benefit from receiving updates on the FSRC's findings as well as a variety of other use-of-force related articles, please visit www.forcesciencenews.com and click on the "Please sign up for our newsletter" link at the front of the site. Subscriptions are free.






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