12/19/2007

Ken WallentineLaw Enforcement and the Law
with Ken Wallentine

Lessons learned in Beaver v. Federal Way

By Ken Wallentine

Note : Although this particular incident involved the use of a Taser, it is important to remember that the elements of this legal case apply to the use of any electro-muscular disruption (EMD) device.

The incident

Beaver had been smoking crack cocaine and marijuana and drinking during a two-day binge. An officer responding to a burglary call saw Beaver running from the scene. The officer recognized him from a prior encounter and called to him by name, ordering him to stop. Beaver continued to run away and the officer shot him with a Taser. Beaver went down.

The officer ordered him to turn on his stomach and extend his arms. Instead, Beaver attempted to get up and the officer activated the Taser a second time. Again, Beaver did not comply with orders to turn onto his stomach and the officer activated the Taser a third time. A backup officer arrived at that point. She gave Beaver a conflicting order, telling him to get on his back. A citizen later testified that he clearly heard Beaver say, “I can’t.” The officer fired the Taser a fourth time and Beaver rolled onto his stomach, with his arms held under him. The officer applied the Taser to Beaver a fifth time at which point he extended his arms above his head. The officer kicked Beaver’s hands to the side and Beaver was handcuffed.

Beaver sues police

Beaver sued, claiming that the officers used excessive force to arrest him and that the backup officer failed to protect him from unnecessary force inflicted by the repeated applications of the Taser. The court ruled that the first three Taser stuns were reasonable. They applied the use of force factors of Graham v. Connor and recognized that: “the officer was alone with a fleeing felony suspect, who was apparently under the influence of controlled substances, who ignored his commands to stop, and who was attempting to rise and perhaps to flee.” However, the court found that the fourth and fifth applications were unreasonable because a backup officer had arrived and would have been able to help secure Beaver without repetition of the Taser stuns.

All use of force lawsuits are measured by standards established by the Supreme Court in Graham v. Connor, 490 U.S. 386 (1989). In the Graham case, the Court instructed lower courts to always ask three questions to measure the constitutionality of a particular use of force.

 

    First, what was the severity of the crime that the officer believed the suspect to have committed or to be committing?

    Second, did the suspect present an immediate threat to the safety of officers or the public?

    Third, was the suspect actively resisting arrest or attempting to escape?

The Supreme Court also stated that the use of force should be measured by what the officer knew at the scene.

An officer may use only that force which is both reasonable and necessary to make an arrest or detention. Anything more is excessive force.

In addition to the three questions asked by the Graham v. Connor case, courts consider the need for the application of force, the relationship between the need and amount of force used, and the extent of the injury inflicted by the officer’s force. The Graham v. Connor factors govern both the amount of force used, as well as the force method, tool, or weapon used. [United States v. Dykes, 406 F.3d 717 (D.C. Cir. 2005)].

Court finds excessive force and failure to protect against excessive force

The court found that the arrival of the backup officer diminished the “immediate threat” Beaver presented to the first officer. Moreover, Beaver’s statement, “I can’t” showed involuntary resistance and not a willful resistance to efforts to control him.

Courts have previously held that when no immediate threat is posed and a suspect's failure to comply may be involuntary, officers were not entitled to use force. [Winterrowd v. Nelson, 480 F.3d 1181 (9th Cir. 2007)]. The court observed that the backup officer could have attempted to handcuff Beaver while the first officer held the Taser on him, ready to fire again if the suspect resisted handcuffing efforts.

In addition to finding that the first officer used excessive force, the court also found that the backup officer violated Beaver’s rights by failing to protect him against the excessive force applied by the first officer.

The court’s logic implies that they expected the officers to go hands-on once there were two officers. This expectation fails to consider that a twisting and resisting suspect can just as easily injure two officers as one. Moreover, the officers must also consider whether swarming a suspect with multiple officers applying physical force isn’t more likely to injure the suspect than a repeated application of the Taser.

Qualified immunity protects the officers from liability

The court concluded that the officers were entitled to qualified immunity. At the time of Beaver’s arrest, the law was not clearly established that officers could not use force when, as in Beaver’s case, a suspect is not a threat, even if the suspect is not fully complying with the officer's commands (one must readily admit that there is a genuine debate over whether the court properly concluded that Beaver was not such a threat even into the fourth and fifth application of the Taser).

A recent case decided by the Ninth Circuit Court of Appeals held just that. [Harveston v. Cunningham, 216 Fed.Appx. 682 (9th Cir. 2007) -- ruling that a police officer used excessive force when he used pepper spray against a suspect who was already handcuffed and on the ground, but who was trying to roll over and stand up contrary to the officer’s orders]. In future cases, at least in the Ninth Circuit, officers in similar situations may not be protected by the qualified immunity doctrine.

This case illustrates the challenge of deciding the appropriate use of force to gain compliance with a lawful order. Though Beaver was actively resisting arrest by fleeing, and later by refusing to show his hands, the court disagreed with the officers that it was proper to apply the Taser when Beaver failed to show his hands and present them for handcuffing.

Law enforcement officers often cannot allow a stalemate to continue when a suspect refuses to comply with a necessary and lawful order, but does not actively resist by assaultive or combative behavior. Courts have supported officers’ use of force to gain compliance from passively resisting suspects. A suspect who refuses to assume a position for searching and handcuffing may be physically forced to comply with either direct force, pepper spray, or an electronic tool. [Archer v. City of Portland, 2006 WL 1643507 (D. Or. 2006) -- shooting bean bag rounds at suspect was reasonable when assault suspect refused to show hands; Willkomm v. Mayer, 2006 WL 582044 (W.D. Wisc. 2006) -- application of Taser was proper when DUI suspect refused to be handcuffed); Reese v. Herbert, 2006 WL 1892026 (N.D. Ga. 2006) -- pepper spray was reasonable force when suspect refused to present arms for handcuffing); Passino v. State, 260 A.D.2d 915 (N.Y. 1999) -- pepper spray reasonable when suspect stood rigid and would not be handcuffed)].

A suspect who refuses to get out of a car may similarly be forced to comply with officers’ directions. [Lawyer v. City of Council Bluffs, 361 F.3d 1099 (8th Cir. 2004) -- pepper spray in driver’s face when driver refused to unlock car door was reasonable]. An arrestee who refuses to get into a patrol car may be sprayed to gain compliance. [Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002) -- “using pepper spray is reasonable where the suspect was either resisting arrest or refusing police requests, such as requests to enter a patrol car”].

The Beaver decision, while perhaps influenced by this line of cases and reasoning, addresses a situation where Beaver may have been physically incapacitated by the Taser. If so, he may not have been able to comply with demands to show his hands. The court disapproved of force to gain compliance from a person unable to comply.

Reporting use of EMD devices

The use of force factors established in Graham v. Connors should guide the reporting of every use of force incident. The report should answer these questions:

• Did I use force in a good faith effort to maintain or restore order?
• What did I believe to be the severity of the crime? Why?
• Was the suspect an immediate threat? To whom?
• What was the threatening behavior?
• Was the suspect resisting or fleeing? How?

Use of force may be reviewed on many levels. The agency should investigate to answer these questions:

• Was the force justified at actual moment of force?
• Did any action by officer or others unnecessarily precipitate use of force?
• Did the officer comply with agency policies?
• Would policy or procedure, additional training or equipment have potentially avoided necessity for force?

There may also be a department internal affairs inquiry to consider whether the officer followed policies. Almost always in cases resulting in death or serious injury, the local prosecutor will look at whether criminal laws were violated by the use of force. The agency’s risk management or insurance department may also investigate in anticipation of a lawsuit.

Lessons learned

Beaver v. City of Federal Way is part of the developing case law concerning Tasers and other electro-muscular disruption (EMD) devices. The ruling suggests great caution in using such a device to gain compliance from a suspect who is not an imminent threat to the officer’s safety. Repeated applications of an EMD will not be justified when the suspect is physically incapable of complying with the officers’ directions. Courts will continue to debate the application of an EMD device for passive non-compliance, such as refusing to show hands, assume a handcuffing position or allow a search.

Not only courts, but also the general public, have many questions about when it is proper to use an EMD on a non-violent, though non-compliant, suspect. As EMD device use is increasingly available as a force option, discussion over their use will also increase.

Officers can best protect themselves by knowing use of force rules and preparing thorough incident reports documenting the need for force.

Beaver v. City of Federal Way, 507 F.Supp.2d 1137 (W.D. Wash. 2007).

About the author

Ken Wallentine is Chief of Law Enforcement for the Utah Attorney General. The views expressed herein are his own. A veteran officer and attorney, his most recent book, The K9 Officer’s Legal Handbook is now available from LexisNexis. For more information about this valuable new book, go to www.kenwallentine.com. Chief Wallentine publishes Xiphos, a free biweekly legal update newsletter for law enforcement officers. Free subscription information is available at his website.
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