First and last use of force reasonable, but what about the force in between?
This case is a reminder that when practicable, officers should allow time for a subject to comply with commands
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Jackson v. Stair, 938 F.3d 966 (8th Cir. 2019)
Officers were called to a tire shop where Charles Jackson was arguing with the staff, claiming one of the workers damaged a lug on his dump truck.
When Officer Billy Stair approached and asked, “What’s going on guys?” Jackson began to yell and point toward some men.
Officer Stair told Jackson to relax, but Jackson replied, “Get him and I’m gonna relax.”
Stair told Jackson to stand by the patrol car and keep his hands out of his pockets. In response, Jackson reached his left hand into his pocket, stopped and stood in front of Stair and shouted that he did not have anything in his pockets. The officer ordered Jackson to turn around, but instead, he yelled louder and did not comply.
Officer Stair aimed a TASER device at Jackson as repeated the command for Jackson to turn around, warning Jackson he would fire the device; Jackson shouted louder. Stair gave five more commands before Jackson began to turn. The officer told Jackson to put his hands up. Though Jackson complied, he did so while still facing the officer. Stair once again commanded Jackson to turn around; Jackson complied, continuing to shout.
Another officer approached Jackson to handcuff him. Jackson moved his hands behind his back and told the officer not to hurt his arm. Jackson then turned to face the officer, raising his right fist toward the officer’s head. Officer Stair fired the TASER device and Jackson fell to the ground.
A moment later, and without another warning, Stair deployed the device again. He told Jackson to turn on his stomach, warning twice that he would fire the device again. Jackson rose to one knee, turning toward Stair. The officer fired the TASER device a third time. Jackson finally turned onto his stomach and was handcuffed and arrested for disorderly conduct.
Jackson sued, alleging unlawful detention and excessive force. The appellate court affirmed the trial court’s grant of summary judgment for the city. Under the Monell doctrine, as decided in Monell v. Department of Social Services of the City of New York (436 U.S. 658 (1978)), a municipality may be liable for an officer’s action when the plaintiff establishes the officer violated a constitutional right and the violation resulted from an “official municipal policy,” an unofficial “custom,” or because the municipality was deliberately indifferent in a failure to train or supervise the officer.
However, the appellate court reversed the grant of summary judgment for Officer Stair. The trial court had ruled Stair acted reasonably, “as a whole,” with all three activations of the TASER device. The appellate court analyzed each energy cycle as a distinct use of force. The court held the initial deployment was reasonable: “Jackson was aggressive and noncompliant,” he ignored multiple orders to turn around, threatened Stair, and “raised his right fist” to the second officer’s head. The court found the third TASER device deployment reasonable as well because, at the time of the third energy cycle, Jackson was rising up after being told to get on his stomach.
It was the second deployment with which the appellate court took issue. Officer Stair asserted he fired the device a second time because “he perceived Jackson to kick his legs out and turn his body as if to confront the officers again.” The court relied on the body-worn camera video to conclude Jackson was several feet from the nearest officer at that point and did not pose a threat to the officers. The court opined Jackson was not likely to be able to escape or resist arrest at the time of the second energy cycle. The court also noted the second energy cycle was not preceded with a warning or a reasonable time frame for Jackson to comply with the officers’ commands.
The appellate court sent the case back to the trial court to determine the reasonableness of the second energization of the TASER device: “The court erred by not considering and analyzing each [energy cycle] individually.” Note: The dissenting judge stated the second cycle “may have been ill-advised,” but was not objectively unreasonable considering the totality of the circumstances. The Supreme Court, and many other courts, frequently note officers must make decisions in rapidly evolving, tense and uncertain circumstances. This case is a reminder that when practicable, officers should allow time for the subject to comply and watch for the ability to comply with commands, as well as issue repeat warnings before subsequent cycles.