Estate of Ronald Armstrong v. The Village of Pinehurst , 810 F.3d 892 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1191
THE ESTATE OF RONALD H. ARMSTRONG, by and through his
Administratrix, Jinia Armstrong Lopez,
Plaintiff - Appellant,
v.
THE VILLAGE OF PINEHURST; OFFICER JERRY MCDONALD, In his
official and individual capacity; OFFICER TINA S. SHEPPARD,
In her official and individual capacity; OFFICER ARTHUR LEE
GATLING, JR., In his official and individual capacity,
Defendants - Appellees,
and
TASER INTERNATIONAL, INC.,
Defendant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cv-00407-CCE-JLW)
Argued: October 28, 2015 Decided: January 11, 2016
Before WILKINSON, KEENAN, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Judge Keenan joined. Judge Wilkinson wrote a separate
opinion concurring in part.
ARGUED: Karonnie R. Truzy, CRUMLEY ROBERTS, LLP, Greensboro,
North Carolina, for Appellant. Dan McCord Hartzog, CRANFILL
SUMNER & HARTZOG LLP, Raleigh, North Carolina, for Appellees.
ON BRIEF: David J. Ventura, CRUMLEY ROBERTS, LLP, Charlotte,
North Carolina, for Appellant. Dan M. Hartzog, Jr., CRANFILL
SUMNER & HARTZOG LLP, Raleigh, North Carolina; Michael J.
Newman, VAN CAMP, MEACHAM & NEWMAN PLLC, Pinehurst, North
Carolina, for Appellees.
2
THACKER, Circuit Judge:
The Estate of Ronald H. Armstrong (“Appellant” when
referring to the estate, or “Armstrong” when referring to the
decedent) appeals an order granting summary judgment to the
Village of Pinehurst, North Carolina, and Lieutenant Jerry
McDonald, Sergeant Tina Sheppard, and Officer Arthur Gatling,
Jr., of the Pinehurst Police Department (“Appellees”). The
district court determined that qualified immunity bars
Appellant’s claim that Appellees used excessive force when
executing an involuntary commitment order, which required
Armstrong’s immediate hospitalization.
On review, we hold that Appellees used
unconstitutionally excessive force when seizing Armstrong, but
we, nevertheless, agree with the district court that Appellees
are entitled to qualified immunity. We, therefore, affirm the
grant of summary judgment in Appellees’ favor on the grounds
explained below.
I.
We review the district court’s grant of summary
judgment de novo. See Henry v. Purnell, 652 F.3d 524, 531 (4th
Cir. 2011) (en banc). We “determine de novo whether the
facts . . . establish the deprivation of an actual
constitutional right,” Leverette v. Bell, 247 F.3d 160, 166 (4th
Cir. 2001), and “[w]e review de novo an award of summary
3
judgment on the basis of qualified immunity,” Durham v. Horner,
690 F.3d 183, 188 (4th Cir. 2012). “Summary judgment is
appropriate only if taking the evidence and all reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party, ‘no material facts are disputed and the moving
party is entitled to judgment as a matter of law.’” Henry, 652
F.3d at 531 (quoting Ausherman v. Bank of Am. Corp., 352 F.3d
896, 899 (4th Cir. 2003)).
II.
A.
Ronald Armstrong suffered from bipolar disorder and
paranoid schizophrenia. On April 23, 2011, he had been off his
prescribed medication for five days and was poking holes through
the skin on his leg “to let the air out.” J.A. 675. 1 His
sister, Jinia Armstrong Lopez (“Lopez”), worried by his
behavior, convinced Armstrong to accompany her to Moore Regional
Hospital (“Hospital”) in Pinehurst, North Carolina. He
willingly went to the Hospital and checked in, but “[d]uring the
course of the evaluation he apparently became frightened and
eloped from the [emergency department].” Id. Based on that
flight and Lopez’s report about his odd behavior over the
1Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
4
previous week, the examining doctor judged Armstrong a danger to
himself and issued involuntary commitment papers to compel his
return. Armstrong’s doctor could have, but did not, designate
him a danger to others, checking only the box that reads
“[m]entally ill and dangerous to self” on the commitment form.
Id.The Pinehurst police were called as soon as Armstrong
left the Hospital, and three members of the department -- all
Appellees in this case -- responded in short order. Officer
Gatling appeared on the scene first, followed a minute or two
later by Sergeant Sheppard. Lieutenant McDonald arrived about
ten minutes after Sheppard. Armstrong had not traveled far when
Gatling arrived. He was located near an intersection near the
Hospital’s main entrance.
When the police arrived, Armstrong’s commitment order
had not yet been finalized. 2 Therefore, Gatling and Sheppard
engaged Armstrong in conversation. By all accounts, the parties
were calm and cooperative at this point in time.
2North Carolina law required that Armstrong’s involuntary
commitment order be certified in writing and notarized before it
took effect. See N.C. Gen. Stat. § 122C-262(b). Police
officers are sometimes authorized to seize individuals to
prevent them from harming themselves without a commitment order
in place, see id. § 122C-262(a), but Appellees did not go that
route. Rather, they rely solely on the involuntary commitment
order as authorization for their seizure of Armstrong.
5
Armstrong was acting strangely, however. When Officer
Gatling first initiated conversation, Armstrong was wandering
across an active roadway that intersects with the Hospital’s
driveway. Gatling successfully convinced him to withdraw to the
relative safety of the roadside, but Armstrong then proceeded to
eat grass and dandelions, chew on a gauze-like substance, and
put cigarettes out on his tongue while the police officers
waited for the commitment order.
As soon as they learned that the commitment papers
were complete, the three police officers surrounded and advanced
toward Armstrong -- who reacted by sitting down and wrapping
himself around a four-by-four post that was supporting a nearby
stop sign. The officers tried to pry Armstrong’s arms and legs
off of the post, but he was wrapped too tightly and would not
budge.
Immediately following finalization of the involuntary
commitment order, in other words, Armstrong was seated on the
ground, anchored to the base of a stop sign post, in defiance of
the order. The three police officers at the scene were
surrounding him, struggling to remove him from the post. Lopez
was in the immediate vicinity as well, along with Jack
Blankenship and Johnny Verbal, two Hospital security officers.
So Armstrong was encircled by six people -- three Pinehurst
police officers tasked with returning him to the Hospital, two
6
Hospital security guards tasked with returning him to the
Hospital, and his sister, who was pleading with him to return to
the Hospital.
Appellees did not prolong this stalemate. Nor did
they attempt to engage in further conversation with Armstrong.
Instead, just thirty seconds or so after the officers told
Armstrong his commitment order was final, Lieutenant McDonald
instructed Officer Gatling to prepare to tase Armstrong.
Officer Gatling drew his taser, set it to “drive stun mode,” 3 and
announced that, if Armstrong did not let go of the post, he
would be tased. That warning had no effect, so Gatling deployed
the taser -- five separate times over a period of approximately
two minutes. 4 Rather than have its desired effect, the tasing
actually increased Armstrong’s resistance.
3 Tasers generally have two modes. “In dart mode, a taser
shoots probes into a subject and overrides the central nervous
system.” Estate of Booker v. Gomez, 745 F.3d 405, 414 n.10
(10th Cir. 2014). Drive stun mode, on the other hand, “does not
cause an override of the victim’s central nervous system”; that
mode “is used as a pain compliance tool with limited threat
reduction.” Id. (internal quotation marks omitted). Appellees’
expert confirmed that the drive stun mode on the TASER X26 ECD
that Officer Gatling was carrying is intended to be used for
pain compliance rather than incapacitation.
4 The number of times Armstrong was tased is a disputed
fact. But Lopez testified that she saw it happen five times,
and because summary judgment was granted in favor of Appellees,
this court must accept her version of the facts. See Henry v.
Purnell, 652 F.3d 524, 527 (4th Cir. 2011) (en banc).
7
But shortly after the tasing ceased, Blankenship and
Verbal jumped in to assist the three police officers trying to
pull Armstrong off of his post. That group of five successfully
removed Armstrong and laid him facedown on the ground.
During the struggle, Armstrong complained that he was
being choked. While no witness saw the police apply any
chokeholds, Lopez did see officers “pull[] his collar like they
were choking him” during the struggle. J.A. 192.
With Armstrong separated from the post, Appellees
restrained him. Lieutenant McDonald and Sergeant Sheppard
pinned Armstrong down by placing a knee on his back and standing
on his back, respectively, while handcuffs were applied. But
even after being cuffed, Armstrong continued to kick at Sergeant
Sheppard, so the police shackled his legs too.
The officers then stood up to collect themselves.
They left Armstrong facedown in the grass with his hands cuffed
behind his back and his legs shackled. At this point, he was no
longer moving -- at all. Lopez was the first to notice that her
brother was unresponsive, so she asked the officers to check on
him. Appellees did so immediately, 5 but Armstrong’s condition
5
It is not clear exactly how long Armstrong was left
facedown on the ground after he had been secured. But Lopez
conceded that it “happen[ed] pretty quickly really” and that the
officers responded “immediately” when asked to check on
(Continued)
8
had already become dire. When the officers flipped him over,
his skin had turned a bluish color and he did not appear to be
breathing.
Sergeant Sheppard and Lieutenant McDonald administered
CPR, and Lieutenant McDonald radioed dispatch to send Emergency
Medical Services (“EMS”). EMS responders transported Armstrong
to the Hospital’s emergency department where resuscitation
attempts continued but were unsuccessful. He was pronounced
dead shortly after admission. According to the Pinehurst Police
Department’s summary of communications during the incident, just
six and one-half minutes elapsed between dispatch advising
Appellees that Armstrong’s commitment papers were final and
Appellees radioing for EMS.
B.
Based on the foregoing, Appellant filed a complaint in
the Superior Court of Moore County, North Carolina, on April 16,
2013. Appellant sued each police officer involved in
Armstrong’s seizure, pursuant to 42 U.S.C. § 1983, alleging that
the officers used excessive force, in violation of Armstrong’s
Armstrong. J.A. 241. Other witnesses estimated the time as “a
couple of seconds” and “15 to 20 seconds.” Id. at 346, 446.
9
Fourth and Fourteenth Amendment rights, when seizing him. 6
Appellees removed the case to the United States District Court
for the Middle District of North Carolina on May 20, 2013.
The district court granted summary judgment to
Appellees on January 27, 2015, reasoning, “[i]t is highly
doubtful that the evidence establishes a constitutional
violation at all, but assuming it does, the defendants are
entitled to qualified immunity.” Estate of Ronald H. Armstrong
v. Village of Pinehurst, No. 1:13-cv-407, slip op. at 4
(M.D.N.C. Jan. 27, 2015) (citation omitted). Appellant filed a
timely notice of appeal on February 24, 2015.
III.
A.
“Qualified immunity protects officers who commit
constitutional violations but who, in light of clearly
established law, could reasonably believe that their actions
were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
6 Appellant’s complaint alleges additional causes of action
and names additional defendants. But Appellant’s brief on
appeal presses only one claim: The officers attempting to
execute the involuntary commitment order used unconstitutionally
excessive force. “Failure to present or argue assignments of
error in opening appellate briefs constitutes a waiver of those
issues,” IGEN Int’l, Inc. v. Roche Diagnostics GmbH, 335 F.3d
303, 308 (4th Cir. 2003), so the excessive force claim is the
only matter that remains pending in this appeal. See Fed. R.
App. P. 28(a)(8)(A).
10
2011) (en banc). A “qualified immunity analysis,” therefore,
“typically involves two inquiries: (1) whether the plaintiff has
established the violation of a constitutional right, and (2)
whether that right was clearly established at the time of the
alleged violation.” Raub v. Campbell, 785 F.3d 876, 881 (4th
Cir. 2015). The court “may address these two questions in ‘the
order . . . that will best facilitate the fair and efficient
disposition of each case.’” Id. (alteration in original)
(quoting Pearson v. Callahan, 555 U.S. 223, 242 (2009)).
Appellant’s case survives summary judgment, however, only if we
answer both questions in the affirmative. See Pearson, 555 U.S.
at 232.
In this case, we adhere to “the better approach to
resolving cases in which the defense of qualified immunity is
raised,” that is, we “determine first whether the plaintiff has
alleged a deprivation of a constitutional right at all.”
Pearson, 555 U.S. at 232 (quoting Cnty. of Sacramento v. Lewis,
523 U.S. 833, 841 n.5 (1998)). Though this sequence is “no
longer . . . regarded as mandatory,” it is “often beneficial,”
and “is especially valuable with respect to questions that do
not frequently arise in cases in which a qualified immunity
defense is unavailable.” Id. at 236. Because excessive force
claims raise such questions, see Nancy Leong, Improving Rights,
100 Va. L. Rev. 377, 393 (2014) (“[E]xcessive force claims are
11
litigated over 98% of the time in the civil context . . . .”),
we exercise our discretion to address the constitutional
question presented by this appeal first.
B.
Our initial inquiry, then, is this: “Taken in the
light most favorable to the party asserting the injury, do the
facts alleged show the officer’s conduct violated a
constitutional right?” Brosseau v. Haugen, 543 U.S. 194, 197
(2004) (per curiam) (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001)). In this case, the answer is yes. Viewed in the light
most favorable to Appellant, the record before us establishes
that, when seizing Armstrong, Appellees used unreasonably
excessive force in violation of the Fourth Amendment.
A “claim that law enforcement officials used excessive
force in the course of making an arrest, investigatory stop, or
other ‘seizure’ of [a] person” is “properly analyzed under the
Fourth Amendment’s ‘objective reasonableness’ standard.” Graham
v. Connor, 490 U.S. 386, 388 (1989); see also Scott v. Harris,
550 U.S. 372, 381 (2007). “The test of reasonableness under the
Fourth Amendment is not capable of precise definition or
mechanical application.” Bell v. Wolfish, 441 U.S. 520, 559
(1979). But the Court has counseled that the test “requires a
careful balancing of the nature and quality of the intrusion on
the individual’s Fourth Amendment interests against the
12
countervailing governmental interests at stake.” Smith v. Ray,
781 F.3d 95, 101 (4th Cir. 2015) (quoting Graham, 490 U.S. at
396). There are, moreover, three factors the Court enumerated
to guide this balancing. First, we look to “the severity of the
crime at issue”; second, we examine the extent to which “the
suspect poses an immediate threat to the safety of the officers
or others”; and third, we consider “whether [the suspect] is
actively resisting arrest or attempting to evade arrest by
flight.” Id. (alteration supplied) (quoting Graham, 490 U.S. at
396). “To properly consider the reasonableness of the force
employed we must ‘view it in full context, with an eye toward
the proportionality of the force in light of all the
circumstances.’” Id. (quoting Waterman v. Batton, 393 F.3d 471,
481 (4th Cir. 2005)).
1.
Here, the first Graham factor favors Appellant.
Appellees have never suggested that Armstrong committed a crime
or that they had probable cause to effect a criminal arrest.
When the subject of a seizure “ha[s] not committed any crime,
this factor weighs heavily in [the subject’s] favor.” Bailey v.
Kennedy, 349 F.3d 731, 743-44 (4th Cir. 2003); see also Turmon
v. Jordan, 405 F.3d 202, 207 (4th Cir. 2005) (“[T]he severity of
the crime cannot be taken into account because there was no
crime.” (internal quotation marks omitted)). And this factor
13
would still favor Appellant if Appellees had argued that their
seizure was converted to a criminal arrest when Armstrong failed
to obey the officers’ lawful orders. “Even in a case in which
the plaintiff ha[s] committed a crime, when the offense [i]s a
minor one, we have found that the first Graham factor weigh[s]
in plaintiff’s favor . . . .” Jones v. Buchanan, 325 F.3d 520,
528 (4th Cir. 2003) (internal quotation marks omitted).
But we have also recognized that this first Graham
factor is intended as a proxy for determining whether “an
officer [had] any reason to believe that [the subject of a
seizure] was a potentially dangerous individual.” Smith, 781
F.3d at 102. And while Armstrong committed no crime, the legal
basis of his seizure did put Appellees on notice of two facts
that bear on the question of whether Appellees had reason to
believe Armstrong was dangerous.
First, as the subject of an involuntary commitment
order, executed pursuant to N.C. Gen. Stat. § 122C-262,
Armstrong was necessarily considered “mentally ill.” See also
N.C. Gen. Stat. § 122C-261(a). Armstrong’s mental health was
thus one of the “facts and circumstances” that “a reasonable
officer on the scene” would ascertain. Graham, 490 U.S. at 396.
And it is a fact that officers must account for when deciding
when and how to use force. See Champion v. Outlook Nashville,
Inc., 380 F.3d 893, 904 (6th Cir. 2004) (“It cannot be forgotten
14
that the police were confronting an individual whom they knew to
be mentally ill . . . . The diminished capacity of an unarmed
detainee must be taken into account when assessing the amount of
force exerted.”). “The problems posed by, and thus the tactics
to be employed against, an unarmed, emotionally distraught
individual who is creating a disturbance or resisting arrest are
ordinarily different from those involved in law enforcement
efforts to subdue an armed and dangerous criminal who has
recently committed a serious offense.” Bryan v. MacPherson, 630
F.3d 805, 829 (9th Cir. 2010) (alteration omitted) (quoting
Deorle v. Rutherford, 272 F.3d 1272, 1282-83 (9th Cir. 2001)).
“[T]he use of force that may be justified by” the government’s
interest in seizing a mentally ill person, therefore, “differs
both in degree and in kind from the use of force that would be
justified against a person who has committed a crime or who
poses a threat to the community.” Id.Mental illness, of course, describes a broad spectrum
of conditions and does not dictate the same police response in
all situations. But “in some circumstances at least,” it means
that “increasing the use of force may . . . exacerbate the
situation.” Deorle, 272 F.3d at 1283. Accordingly, “the use of
officers and others trained in the art of counseling is
ordinarily advisable, where feasible, and may provide the best
means of ending a crisis.” Id. And even when this ideal course
15
is not feasible, officers who encounter an unarmed and minimally
threatening individual who is “exhibit[ing] conspicuous signs
that he [i]s mentally unstable” must “de-escalate the situation
and adjust the application of force downward.” Martin v. City
of Broadview Heights, 712 F.3d 951, 962 (6th Cir. 2013).
The second relevant fact that Appellees could glean
from Armstrong’s commitment order is that a doctor determined
him to be a danger to himself. 7 Where a seizure’s sole
justification is preventing harm to the subject of the seizure,
the government has little interest in using force to effect that
seizure. Rather, using force likely to harm the subject is
manifestly contrary to the government’s interest in initiating
that seizure. See Drummond ex rel. Drummond v. City of Anaheim,
343 F.3d 1052, 1059 (9th Cir. 2003) (When “a mentally disturbed
7Armstrong’s involuntary commitment order could have issued
in order “to prevent harm to self or others,” N.C. Gen. Stat.
§ 122C-262(a) (emphasis supplied), and it is not entirely clear
from the record whether reasonable officers at the scene would
have known that Armstrong had only been judged a danger to
himself or would have thought that a doctor may consider him a
danger to others. The officers did, however, speak to Wayne
Morton, the behavioral assessment nurse who assisted with
preparation of Armstrong’s commitment papers, prior to seizing
Armstrong. In addition, the officers observed Armstrong for
over 20 minutes before the involuntary commitment order was
issued. During this period, Armstrong engaged in behavior
mildly harmful to himself, but he exhibited no risk of flight or
risk of harm to others. Taking these facts in the light most
favorable to Appellant, objectively reasonable officers would be
aware of the basis underlying Armstrong’s commitment order.
16
individual not wanted for any crime . . . [i]s being taken into
custody to prevent injury to himself[,] [d]irectly causing [that
individual] grievous injury does not serve th[e officers’]
objective in any respect.”).
The first Graham factor thus weighs against imposition
of force. The government’s interest in seizing Armstrong was to
prevent a mentally ill man from harming himself. The
justification for the seizure, therefore, does not vindicate any
degree of force that risks substantial harm to the subject.
2.
The second and third Graham factors, whether Armstrong
threatened the safety of others and resisted seizure, do justify
some -- limited -- use of force, though. Appellees had observed
Armstrong wandering into traffic with little regard for avoiding
the passing cars, and the seizure took place only a few feet
from an active roadway. Armstrong, moreover, fled from the
Hospital earlier that day, although he did not go far. Under
such circumstances, Appellees concerns that Armstrong may try to
flee into the street to avoid being returned to the Hospital,
thereby endangering himself and individuals in passing cars,
were objectively reasonable. A degree of force was,
consequently, justified.
But that justified degree of force is the degree
reasonably calculated to prevent Armstrong’s flight. When
17
Appellees decided to begin using force, Armstrong, who stood
5’11” tall and weighed 262 pounds, was stationary, seated,
clinging to a post, and refusing to move. He was also
outnumbered and surrounded by police officers and security
guards. The degree of force necessary to prevent an individual
who is affirmatively refusing to move from fleeing is obviously
quite limited.
Armstrong was also resisting the seizure. There is no
question that, prior to being tased, Armstrong was refusing to
let go of the post he had wrapped himself around despite verbal
instruction to desist and a brief -- 30-second -- attempt to
physically pull him off. Noncompliance with lawful orders
justifies some use of force, but the level of justified force
varies based on the risks posed by the resistance. See Bryan,
630 F.3d at 830 (“‘Resistance,’ however, should not be
understood as a binary state, with resistance being either
completely passive or active. . . . Even purely passive
resistance can support the use of some force, but the level of
force an individual’s resistance will support is dependent on
the factual circumstances underlying that resistance.”) And,
here, the factual circumstances demonstrate little risk --
Armstrong was stationary, non-violent, and surrounded by people
willing to help return him to the Hospital. That Armstrong was
not allowing his arms to be pulled from the post and was
18
refusing to comply with shouted orders to let go, while cause
for some concern, do not import much danger or urgency into a
situation that was, in effect, a static impasse.
3.
When we turn “an eye toward the proportionality of the
force in light of all the[se] circumstances,’” Smith, 781 F.3d
at 101 (alteration and emphasis supplied) (quoting Waterman, 393
F.3d at 481), it becomes evident that the level of force
Appellees chose to use was not objectively reasonable.
Appellees were confronted with a situation involving few
exigencies where the Graham factors justify only a limited
degree of force. Immediately tasing a non-criminal, mentally
ill individual, who seconds before had been conversational, was
not a proportional response.
Deploying a taser is a serious use of force. The
weapon is designed to “caus[e] . . . excruciating pain,”
Cavanaugh v. Woods Cross City, 625 F.3d 661, 665 (10th Cir.
2010), and application can burn a subject’s flesh, see Orem v.
Rephann, 523 F.3d 442, 447-48 (4th Cir. 2008) abrogated on other
grounds by Wilkins v. Gaddy, 559 U.S. 34, 37 (2010); cf.
Commonwealth v. Caetano, 26 N.E.3d 688, 692 (Mass. 2015) (“[W]e
consider the stun gun a per se dangerous weapon at common
law.”). We have observed that a taser “inflicts a painful and
frightening blow.” Orem, 523 F.3d at 448 (quoting Hickey v.
19
Reeder, 12 F.3d 754, 757 (8th Cir. 1993)). Other circuits have
made similar observations. 8 See, e.g., Estate of Booker v.
Gomez, 745 F.3d 405, 414 n.9 (10th Cir. 2014) (“A taser delivers
electricity into a person’s body, causing severe pain.”); Abbott
v. Sangamon Cnty., 705 F.3d 706, 726 (7th Cir. 2013) (“This
court has acknowledged that one need not have personally endured
a taser jolt to know the pain that must accompany it, and
several of our sister circuits have likewise recognized the
intense pain inflicted by a taser.” (internal citations and
quotation marks omitted)); Bryan, 630 F.3d at 825 (“The
physiological effects, the high levels of pain, and foreseeable
risk of physical injury lead us to conclude that the X26 and
similar devices are a greater intrusion than other non-lethal
methods of force we have confronted.”).
8
Officer Gatling deployed his taser in drive stun mode,
which is intended to cause pain but is not intended to cause
paralysis. See supra n.3. Our conclusions about the severity
of taser use, however, would be the same had he used dart mode.
Dart mode, no less than drive stun mode, inflicts extreme pain.
See David A. Harris, Taser Use by Law Enforcement: Report of the
Use of Force Working Group of Allegheny County, Pennsylvania, 71
U. Pitt. L. Rev. 719, 726-27 (2010) (“I remember only one
coherent thought in my head while this was occurring: STOP!
STOP! GET THIS OFF ME! Despite my strong desire to do
something, all through the Taser exposure I was completely
paralyzed. I could not move at all.” (emphasis in original)).
And the risk of injury is increased because a paralyzed subject
may be injured by the impact from falling to the ground. See
Bryan, 630 F.3d at 824. Taser use is severe and injurious
regardless of the mode to which the taser is set.
20
These observations about the severe pain inflicted by
tasers apply when police officers utilize best practices. The
taser use at issue in this case, however, contravenes current
industry and manufacturer recommendations. Since at least 2011,
the Police Executive Research Forum (“PERF”) and the Department
of Justice’s Office of Community Oriented Policing Services
(“COPS”) have cautioned that using drive stun mode “to achieve
pain compliance may have limited effectiveness and, when used
repeatedly, may even exacerbate the situation.” PERF & COPS,
2011 Electronic Control Weapon Guidelines, at 14 (March 2011)
(emphasis omitted). The organizations, therefore, recommend
that police departments “carefully consider policy and training
regarding when and how personnel use the drive stun mode[] and .
. . discourage its use as a pain compliance tactic.” Id. In
2013, moreover, Taser International, the manufacturer of the
taser Appellees used in this case, warned, “Drive-stun use may
not be effective on emotionally disturbed persons or others who
may not respond to pain due to a mind-body disconnect.” Cheryl
W. Thompson & Mark Berman, Stun guns: ‘There was just too much
use,’ Wash. Post, Nov. 27, 2015, at A1. Taser users, the
warning goes on, should “[a]void using repeated drive-stuns on
such individuals if compliance is not achieved.” Id. Even the
company that manufactures tasers, in other words, now warns
against the precise type of taser use inflicted on Armstrong.
21
Force that imposes serious consequences requires
significant circumscription. Our precedent, consequently, makes
clear that tasers are proportional force only when deployed in
response to a situation in which a reasonable officer would
perceive some immediate danger that could be mitigated by using
the taser. In Meyers v. Baltimore County, we parsed a
defendant-officer’s taser deployments based on the level of
resistance the arrestee was offering -- and the danger that
resistance posed to the officers -- when each shock was
administered. See 713 F.3d 723, 733-34 (4th Cir. 2013). The
“first three deployments of [the] taser did not amount to an
unreasonable or excessive use of force[] [because the arrestee]
was acting erratically, was holding a baseball bat that he did
not relinquish until after he received the second shock, and was
advancing toward the officers . . . .” Id. at 733. But seven
later deployments of the taser did amount to excessive force:
It is an excessive and unreasonable use of
force for a police officer repeatedly to
administer electrical shocks with a taser on
an individual who no longer is armed, has
been brought to the ground, has been
restrained physically by several other
officers, and no longer is actively
resisting arrest.
Id. at 734. Immediate danger was thus key to our distinction --
tasing the arrestee ceased being proportional force when the
22
officer “continued to use his taser” after the arrestee “did not
pose a continuing threat to the officers’ safety.” Id. at 733.
In Orem v. Rephann, though we were applying a
Fourteenth Amendment test rather than the Fourth Amendment’s
objective reasonableness test, we rejected an officer’s argument
that the taser deployment in question was intended to prevent an
arrestee from endangering herself because the facts belied any
immediate danger. See 523 F.3d at 447-49. Rather, those facts
-- that “Orem was handcuffed, weighed about 100 pounds, had her
ankles loosened in the hobbling device which Deputy Boyles was
tightening, and was locked in the back seat cage of Deputy
Boyles’s car until Deputy Rephann opened the door” -- indicated
that “the taser gun was not used for a legitimate purpose[,]
such as protecting the officers, protecting Orem, or preventing
Orem’s escape.” Id. As in Meyers, then, we tied permissible
taser use to situations that present some exigency that is
sufficiently dangerous to justify the force.
Appellees understand these cases to proscribe tasing
when a subject has already been restrained but to sanction the
practice when deployed against active resistance. Since
Armstrong was unrestrained and actively resisting, they contend,
their taser use must be permissible.
We disagree. While the questions whether an arrestee
has been restrained and is complying with police directives are,
23
of course, relevant to any inquiry into the extent to which the
arrestee “pose[s] a continuing threat to the officers’ safety,”
Meyers, 713 F.3d at 733, they are not dispositive. A rule
limiting taser use to situations involving a proportional safety
threat does not countenance use in situations where an
unrestrained arrestee, though resistant, presents no serious
safety threat.
Indeed, application of physical restraints cannot be
the only way to ensure that an arrestee does not pose a
sufficient safety threat to justify a tasing. If it were, use
of a taser would be justified at the outset of every lawful
seizure, before an arrestee has been restrained. This, of
course, is not the law. Courts recognize that different
seizures present different risks of danger. See, e.g., Parker
v. Gerrish, 547 F.3d 1, 9 (1st Cir. 2008) (“Though driving while
intoxicated is a serious offense, it does not present a risk of
danger to the arresting officer that is presented when an
officer confronts a suspect engaged in an offense like robbery
or assault.”). Firing a taser “almost immediately upon arrival”
at the scene of an altercation, before an officer “could . . .
have known what was going on,” is, consequently,
constitutionally proscribed. Casey v. City of Fed. Heights, 509
F.3d 1278, 1285 (10th Cir. 2007); see also id. at 1286 (“[I]t is
excessive to use a Taser to control a target without having any
24
reason to believe that a lesser amount of force -- or a verbal
command -- could not exact compliance.”). Painful, injurious,
serious inflictions of force, like the use of a taser, do not
become reasonable simply because officers have authorization to
arrest a subject who is unrestrained.
Even noncompliance with police directives and non-
violent physical resistance do not necessarily create “a
continuing threat to the officers’ safety.” Meyers, 713 F.3d at
733. Examples of minimally risky physical resistance are
prevalent. Refusing to enter an out-of-state officer’s police
car until a local officer is summoned is not a sufficient threat
to the arresting officer to justify physically striking the
arrestee. See Rambo v. Daley, 68 F.3d 203, 207 (7th Cir. 1995).
Nor is an arrestee pulling her arm away when a police officer
attempts to grab her without explanation. See Smith, 781 F.3d
at 103. An arrestee “yank[ing] his arm away” from a police
officer, similarly, does not justify “being tackled.” Goodson
v. City of Corpus Christi, 202 F.3d 730, 733, 740 (5th Cir.
2000).
Unsurprisingly, then, other circuits have held that
taser use can constitute excessive force when used in response
to non-violent resistance. The subject of a seizure “refus[ing]
to release his arms for handcuffing,” for example, “is no[t]
evidence suggesting that [he] violently resisted the officers’
25
attempts to handcuff him.” Cyrus v. Town of Mukwonago, 624 F.3d
856, 863 (7th Cir. 2010) (emphasis supplied). Such a refusal,
therefore, does not justify deploying a taser when the subject
“[i]s unarmed and there [i]s little risk [he] could access a
weapon,” according to the Seventh Circuit. Id. The en banc
Ninth Circuit has drawn a similar conclusion: A suspect
“actively resist[s] arrest [when] she refuse[s] to get out of
her car when instructed to do so and stiffen[s] her body and
clutche[s] her steering wheel to frustrate the officers’ efforts
to remove her from her car,” but when she also “d[oes] not evade
arrest by flight, and no other exigent circumstances exist[] at
the time[,] . . . [a] reasonable fact-finder could
conclude . . . that the officers’ use of [a taser] was
unreasonable and therefore constitutionally excessive.” Mattos
v. Agarano, 661 F.3d 433, 446 (9th Cir. 2011) (en banc). The
Eighth Circuit agrees as well. See Brown v. City of Golden
Valley, 574 F.3d 491, 497 (8th Cir. 2009) (refusal to terminate
a telephone call after police ordered an arrestee to do so does
not justify tasing even though the police officer was concerned
that the arrestee could use glass tumblers near her feet as
weapons or could kick the officer).
And this conclusion, that taser use is unreasonable
force in response to resistance that does not raise a risk of
immediate danger, is consistent with our treatment of police
26
officers’ more traditional tools of compliance. We have denied
summary judgment on excessive force claims to an officer, who
“punched [an arrestee][,] threw him to the ground,” and,
subsequently, “used a wrestling maneuver” on him, because there
was no “real evidence that [a] relatively passive, [mentally
delayed] man was a danger to the larger, trained police
officer.” Rowland v. Perry, 41 F.3d 167, 172, 174 (4th Cir.
1994). In doing so, we rejected the argument that such force
was a reasonable response to “the resistance offered by [the
arrestee] during the struggle,” reasoning that, despite this
resistance, the arrestee “posed no threat to the officer or
anyone else.” Id. at 173-74.
We have similarly held that punching and throwing an
arrestee to the ground because she “took only a single step back
off of the small stoop in front of the door” and “pulled her arm
away” during an attempted handcuffing was excessive force.
Smith, 781 F.3d at 102-03. This nominal resistance did not
justify the officer’s use of force where a reasonable officer at
the scene would not have “any reason to believe that [the
arrestee] was a potentially dangerous individual” or “was at all
inclined to cause [the officer] any harm.” Id. at 102.
And we have treated pepper spray, a use of force that
causes “closing of the eyes through swelling of the
eyelids, . . . immediate respiratory inflammation, . . .
27
and . . . immediate burning sensations,” similarly, having held
it excessive when used on an arrestee’s wife, who was sprinting
toward police officers to assist her husband upon seeing him
placed in handcuffs. Park v. Shiflett, 250 F.3d 843, 848-49,
852 (4th Cir. 2001). Though the officers at the scene thought
running full-bore toward their detainee was basis to arrest the
wife for “disorderly conduct[] [and] obstruction of a law
enforcement officer in the performance of his duties,” id. at
854 n.* (Traxler, J., concurring in part and dissenting in
part), we rejected any notion that such behavior justified the
application of pepper spray, see id. at 852-83 (maj. op.).
Rather, because “[i]t [wa]s difficult to imagine the
unarmed [wife] as a threat to the officers or the public,” the
officers’ “irresponsible use of pepper spray twice from close
range . . . was indeed excessive.” Id.In all of these cases, we declined to equate conduct
that a police officer characterized as resistance with an
objective threat to safety entitling the officer to escalate
force. Our precedent, then, leads to the conclusion that a
police officer may only use serious injurious force, like a
taser, when an objectively reasonable officer would conclude
that the circumstances present a risk of immediate danger that
28
could be mitigated by the use of force. At bottom, “physical
resistance” is not synonymous with “risk of immediate danger.” 9
Therefore, in the case before us, Appellees’ use of
force is only “proportional[] . . . in light of all the
circumstances,” Smith, 781 F.3d at 101 (quoting Waterman, 393
F.3d at 481), if Armstrong’s resistance raised a risk of
immediate danger that outweighs the Graham factors militating
against harming Armstrong. But when the facts are viewed in the
light most favorable to Appellant, they simply do not support
that conclusion.
Under these facts, when Officer Gatling deployed his
taser, Armstrong was a mentally ill man being seized for his own
protection, was seated on the ground, was hugging a post to
ensure his immobility, was surrounded by three police officers
9
Graham’s test “requires careful attention to the facts and
circumstances of each particular case.” Graham, 490 U.S. at
396. Our holding, therefore, does not rule out the possibility
that taser use could be justified in some cases where an
arrestee’s non-compliance could be described as non-violent.
Such a situation would require the existence of facts from which
an officer could reasonably conclude that the resistance
presents some immediate danger despite its non-violent
character. See Casey v. City of Fed. Heights, 509 F.3d 1278,
1285 (10th Cir. 2007) (“While we do not rule out the possibility
that there might be circumstances in which the use of a Taser
against a nonviolent offender is appropriate, we think a
reasonable jury could decide that [a police officer] was not
entitled under these circumstances to shoot first and ask
questions later.”).
29
and two Hospital security guards, 10 and had failed to submit to a
lawful seizure for only 30 seconds. A reasonable officer would
have perceived a static stalemate with few, if any, exigencies -
- not an immediate danger so severe that the officer must beget
the exact harm the seizure was intended to avoid.
That Armstrong had already left the Hospital and was
acting strangely while the officers waited for the commitment
order to be finalized do not change this calculus. If merely
acting strangely in such a circumstance served as a green light
to taser deployment, it would then be the rule rather than the
exception when law enforcement officials encounter the mentally
ill. That cannot be. By the time Appellees chose to inflict
force, any threat had sunk to its nadir -- Armstrong had
immobilized himself, ceased chewing on inedible substances, and
ceased burning himself. Use of force designed to “caus[e] . . .
excruciating pain,” Cavanaugh, 625 F.3d at 665, in these
circumstances is an unreasonably disproportionate response.
We are cognizant that courts ought not “undercut the
necessary element of judgment inherent in a constable’s attempts
to control a volatile chain of events.” Brown v. Gilmore, 278
10
Indeed, it was not the deployment of the taser that
ultimately resulted in Armstrong’s removal from the post, but
rather, the additional aid of the two security guards, who
jumped in to assist the three police officers prying him off the
post.
30
F.3d 362, 369 (4th Cir. 2002). And we certainly do not suggest
that Appellees had a constitutional duty to stand idly by and
hope that Armstrong would change his mind and return to the
Hospital on his own accord. But the facts of this case make
clear that our ruling does not hamper police officers’ ability
to do their jobs: Tasing Armstrong did not force him to succumb
to Appellees’ seizure -- he actually increased his resistance in
response. When Appellees stopped tasing and enlisted the
Hospital’s security guards to help pull Armstrong off of the
post, however, the group removed Armstrong and placed him in
restraints. Had Appellees limited themselves to permissible
uses of force when seizing Armstrong, they would have had every
tool needed to control and resolve the situation at their
disposal.
Appellees, therefore, are not entitled to summary
judgment on the question whether they violated the Constitution.
Viewing the record in the light most favorable to Appellant,
Appellees used excessive force, in violation of the Fourth
Amendment. 11
11
We have reviewed Appellant’s additional theories of
excessive force but have determined that they lack merit. Those
theories are based on Appellees’ conduct while handcuffing and
shackling Armstrong. Applying “just enough weight” to
immobilize an individual “continu[ing] to struggle” during
handcuffing is not excessive force. Estate of Phillips v. City
of Milwaukee, 123 F.3d 586, 593 (7th Cir. 1997). Appellant
(Continued)
31
C.
We, nevertheless, affirm the district court’s grant of
summary judgment in Appellees’ favor because we conclude that
Appellees are entitled to qualified immunity.
Qualified immunity “shields government officials from
liability for civil damages, provided that their conduct does
not violate clearly established statutory or constitutional
rights within the knowledge of a reasonable person.” Meyers,
713 F.3d at 731. Not all constitutional violations are
“violat[ions of] clearly established . . . constitutional
rights,” id., so “a plaintiff may prove that an official has
violated his rights, but an official [may still be] entitled to
qualified immunity.” Torchinsky v. Siwinski, 942 F.2d 257, 261
(4th Cir. 1991).
The inquiry into whether a constitutional right is
clearly established requires first that we define the precise
right into which we are inquiring. Because “[t]he dispositive
concedes that Armstrong was resisting Appellees’ efforts to
restrain him, that Appellees stopped applying force to
Armstrong’s back when their restraints were secure, and that
Armstrong was left in the prone position for a very short period
of time after being restrained. Lopez, herself, even placed her
foot on Armstrong’s leg to assist Appellees’ efforts to
immobilize Armstrong and apply restraints. In those
circumstances, an officer at the scene could conclude that the
force used to hold Armstrong down and the length of time
Armstrong was left on the ground were objectively reasonable.
32
question is ‘whether the violative nature of particular conduct
is clearly established,’” Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (per curiam) (emphasis in original) (quoting Ashcroft v.
al-Kidd, 563 U.S. 731, 742 (2011)), courts must “not . . .
define clearly established law at a high level of generality,”
al-Kidd, 563 U.S. at 742.
After defining the right, we ask whether it was
clearly established at the time Appellees acted. A right
satisfies this standard when it is “sufficiently clear that
every reasonable official would have understood that what he is
doing violates that right.” Mullenix, 136 S. Ct. at 308(quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)).
“This is not to say that an official action is
protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say
that in the light of pre-existing law the unlawfulness must be
apparent.” Wilson v. Layne, 526 U.S. 603, 615 (1999) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “[O]fficials
can . . . be on notice that their conduct violates established
law even in novel factual circumstances.” Hope v. Pelzer, 536
U.S. 730, 741 (2002). But they must, in fact, have notice in
order to be held liable.
The constitutional right in question in the present
case, defined with regard for Appellees’ particular violative
33
conduct, is Armstrong’s right not to be subjected to tasing
while offering stationary and non-violent resistance to a lawful
seizure. Cf. Hagans v. Franklin Cnty. Sheriff’s Office, 695
F.3d 505, 509 (6th Cir. 2012) (“Defined at the appropriate level
of generality -- a reasonably particularized one -- the question
at hand is whether it was clearly established in May 2007 that
using a taser repeatedly on a suspect actively resisting arrest
and refusing to be handcuffed amounted to excessive force.”).
While our precedent supports our conclusion that Appellees
violated that right when seizing Armstrong, we acknowledge that
this conclusion was not so settled at the time they acted such
that “every reasonable official would have understood that”
tasing Armstrong was unconstitutional. Mullenix, 136 S. Ct. at
308 (quoting Reichle, 132 S. Ct. at 2093).
To be sure, substantial case law indicated that
Appellees were treading close to the constitutional line. As
discussed, we have previously held that tasing suspects after
they have been secured, see Meyers, 713 F.3d at 734; 12 Bailey,
12Meyers v. Baltimore County was decided after Appellees’
conduct in the instant case, but Meyers did not clearly
establish any right for the first time. Rather in Meyers, we
found that the officer in question violated a right that had
been clearly established since, at least, Bailey v. Kennedy,
which was decided in 2003. See Meyers, 713 F.3d at 734-35
(citing Bailey, 349 F.3d at 744-45). Appellees in the instant
case, therefore, were on notice that tasing an individual who
(Continued)
34
349 F.3d at 744-45, and that punching or pepper spraying
suspects in response to minimal, non-violent resistance, see
Park, 250 F.3d at 849-53; Rowland, 41 F.3d at 172-74, constitute
excessive force.
These cases, however, are susceptible to readings
which would not extend to the situation Appellees faced when
seizing Armstrong. Unlike in Meyers and Bailey, Appellees did
not continue using force after Armstrong was secured. See
Meyers, 713 F.3d at 734; Bailey, 349 F.3d at 744. And unlike in
Park and Rowland, Appellant does not contend the officers in
question initiated the excessive force without warning or
opportunity to cease any noncompliance. See Park, 250 F.3d at
848; Rowland, 41 F.3d at 171-72. It would not necessarily have
been clear to every reasonable officer that those cases applied
to force inflicted after warning an individual exhibiting non-
violent resistance to desist and discontinued before that
individual was secured.
A survey of other circuits’ case law confirms that
Appellees did not have sufficiently clear guidance to forfeit
qualified immunity. Again, there were many decisions that ought
to have given Appellees pause. See Bryan, 630 F.3d at 826-27
“was unarmed and effectively was secured” is clearly
unconstitutional. Id. at 735.
35
(taser use against individual exhibiting “unusual behavior” and
“shouting gibberish[] and . . . expletives” who was “unarmed,
stationary . . ., [and] facing away from an officer at a
distance of fifteen to twenty-five feet” constitutes excessive
force); Cyrus, 624 F.3d at 863 (taser use when misdemeanant was
not violent and did not try to flee but resisted being
handcuffed constitutes excessive force); Brown, 574 F.3d at 499(“[I]t was unlawful to Taser a nonviolent, suspected
misdemeanant who was not fleeing or resisting arrest, who posed
little to no threat to anyone’s safety, and whose only
noncompliance with the officer’s commands was to disobey two
orders to end her phone call to a 911 operator.”)
But other cases could be construed to sanction
Appellees’ decision to use a taser. In 2004, the Eleventh
Circuit held, “use of [a] taser gun to effectuate [an]
arrest . . . was reasonably proportionate to the difficult,
tense and uncertain situation” faced by a police officer when an
arrestee “used profanity, moved around and paced in
agitation, . . . yelled at [the officer],” and “repeatedly
refused to comply with . . . verbal commands.” Draper v.
Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004)). When reviewing
the law as of 2007, moreover, the Sixth Circuit found, “[c]ases
from this circuit and others, before and after May 2007, adhere
to this line: If a suspect actively resists arrest and refuses
36
to be handcuffed, officers do not violate the Fourth Amendment
by using a taser to subdue him.” Hagans, 695 F.3d at 509. The
Hagans court proceeded to provide examples in which the Sixth
Circuit had held tasing reasonable simply because “[t]he suspect
refused to be handcuffed” or “the suspect . . . refused to move
his arms from under his body.” Id. Other circuits, in short,
have sometimes distinguished permissible and impermissible
tasing based on facts establishing bare noncompliance rather
than facts establishing a risk of danger. Because Armstrong was
not complying with Appellees’ commands, these cases negate the
existence of any “consensus of cases of persuasive authority”
across our sister circuits “such that a reasonable officer could
not have believed that his actions were lawful.” Wilson, 526
U.S. at 617.
We conclude, therefore, that Armstrong’s right not to
be tased while offering stationary and non-violent resistance to
a lawful seizure was not clearly established on April 23, 2011.
Indeed, two months after Appellees’ conduct in this case, one of
our colleagues wrote, “the objective reasonableness of the use
of Tasers continues to pose difficult challenges to law
enforcement agencies and courts alike. . . . ‘That the law is
still evolving is illustrated in cases granting qualified
immunity for that very reason.’” Henry, 652 F.3d at 539-40
37
(Davis, J., concurring) (quoting McKenney v. Harrison, 635 F.3d
354, 362 (8th Cir. 2011) (Murphy, J., concurring)).
D.
This ought not remain an evolving field of law
indefinitely though. “Without merits adjudication, the legal
rule[s]” governing evolving fields of constitutional law
“remain unclear.” John C. Jeffries, Jr., Reversing the Order of
Battle in Constitutional Torts, 2009 Sup. Ct. Rev. 115, 120.
“What may not be quite so obvious, but is in fact far more
important, is the degradation of constitutional rights that may
result when . . . constitutional tort claims are resolved solely
on grounds of qualified immunity.” Id. This degradation is
most pernicious to rights that are rarely litigated outside the
context of § 1983 actions subject to qualified immunity --
rights like the Fourth Amendment protection against excessive
force at issue here. See id. at 135-36. “For [such rights],
the repeated invocation of qualified immunity will reduce the
meaning of the Constitution to the lowest plausible conception
of its content.” Id. at 120.
Rather than accept this deteriorative creep, we intend
this opinion to clarify when taser use amounts to excessive
force in, at least, some circumstances. A taser, like “a gun, a
baton, . . . or other weapon,” Meyers, 713 F.3d at 735, is
expected to inflict pain or injury when deployed. It,
38
therefore, may only be deployed when a police officer is
confronted with an exigency that creates an immediate safety
risk and that is reasonably likely to be cured by using the
taser. The subject of a seizure does not create such a risk
simply because he is doing something that can be characterized
as resistance -- even when that resistance includes physically
preventing an officer’s manipulations of his body. Erratic
behavior and mental illness do not necessarily create a safety
risk either. To the contrary, when a seizure is intended solely
to prevent a mentally ill individual from harming himself, the
officer effecting the seizure has a lessened interest in
deploying potentially harmful force.
Where, during the course of seizing an out-numbered
mentally ill individual who is a danger only to himself, police
officers choose to deploy a taser in the face of stationary and
non-violent resistance to being handcuffed, those officers use
unreasonably excessive force. While qualified immunity shields
the officers in this case from liability, law enforcement
officers should now be on notice that such taser use violates
the Fourth Amendment.
IV.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
39
WILKINSON, Circuit Judge, concurring in part:
I am happy to concur in the judgment of affirmance and in
Part III.C of the majority opinion. Having resolved the case by
properly awarding judgment to defendants on qualified immunity
grounds, the majority had no need to opine on the merits of the
excessive force claim. In fact, it runs serious risks in doing
so.
This was a close case, the very kind of dispute in which
judicial hindsight should not displace the officers’ judgmental
calls. I do not contend that the officers’ behavior was
impeccable here, but I do believe, with the district court, that
it was not the kind of action that merited an award of monetary
damages.
I.
These are difficult situations. It is undisputed that on
April 23, 2011, Armstrong had been off his medications for days
and was in an unpredictable and erratic state. J.A. 210-19. It
is undisputed that by the time Officer Sheppard arrived at the
scene, Armstrong was engaged in self-destructive behavior --
eating grass, dandelions, and gauze, and burning his arms and
tongue with cigarettes. Id. at 507-08. It is undisputed that the
police obtained an involuntary commitment order to bring
Armstrong back to the hospital. Id. at 534. It is undisputed
that Armstrong did not want to return to the hospital despite
his sister’s pleas to stop resisting authorities. Id. at 231. It
is undisputed that Armstrong was a strong man, and weighed about
260 pounds. Id. at 297-98, 411. It is undisputed that before the
officers ultimately detained Armstrong they did not have an
opportunity to frisk him for weapons. Id. at 464. It is
undisputed that the sign post Armstrong gripped was near a
trafficked intersection. Id. at 461. It is undisputed that the
officers “had observed Armstrong wandering into traffic with
little regard for avoiding the passing cars and the seizure took
place only a few feet from an active roadway.” Maj. Op. at 17.
It is undisputed that the officers applied graduated levels of
force -- first verbal commands and then a “soft hands” approach
-- prior to Officer Gatling’s use of his Taser. J.A. 514. It is
undisputed that Armstrong tried to kick the officers as they put
handcuffs on his legs. Id. at 573. “The calculus of
reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments -- in
circumstances that are tense, uncertain, and rapidly evolving --
about the amount of force that is necessary in a particular
situation” Graham v. Connor, 490 U.S. 386, 396-97 (1989). That
pretty much describes the situation here.
41
II.
Having thoughtfully resolved the appeal on qualified
immunity grounds, * the majority launches into an extended
discussion on the merits of the excessive force claim. This is
so unnecessary. Sometimes it is best for courts not to write
large upon the world but to discharge our simple rustic duty to
decide the case.
The Supreme Court in Pearson v. Callahan, 555 U.S. 223(2009), gave us the discretion to do just that. Pearson is
admittedly a decision with a bit of back and forth, but its
salient contribution was to liberate the lower federal courts
from the onerous shackles of the Saucier v. Katz regime and
allow them to proceed directly to a qualified immunity analysis
without addressing the merits first. In this regard, Pearson
recognized the foremost duty of courts to resolve cases and
controversies. Id. at 242. That, at least, is what Article III
established us to do.
In fact, proceeding in such a manner is often the
preferable course. The majority says it must go further in order
* Normally, “clearly established” law is found by looking to
Supreme Court cases and the cases in the circuit in which the
officers are located. See Marshall v. Rodgers, __ U.S. __, 133
S.Ct. 1446, 1450 (2013). My good colleagues range somewhat
further afield here, but I think doing so in this case in no way
affected the outcome.
42
to provide clarity in future cases, Maj. Op. at 38-39, but that
clarity is often illusory. Today’s prescription may not fit
tomorrow’s facts and circumstances. Our rather abstract
pronouncements in one case may be of little assistance with the
realities and particulars of another.
As the Supreme Court noted, “the rigid Saucier procedure
comes with a price. The procedure sometimes results in a
substantial expenditure of scarce judicial resources on
difficult questions that have no effect on the outcome of the
case. There are cases in which it is plain that a constitutional
right is not clearly established but far from obvious whether in
fact there is such a right.” Pearson, 555 U.S. at 236-37. So I
would respectfully prefer not to get into the first prong of the
Saucier analysis here. It is “far from obvious,” to use the
Court’s term, that the trial court’s conclusion that
“[a]dditional reasonable force was appropriate under these
circumstances” was unsound. J.A. 767.
Clarity is arguably most difficult to achieve in Fourth
Amendment cases because bright-line rules at most imperfectly
take account of the slight shifts in real-life situations that
can alter what are inescapably close judgment calls. As the
Supreme Court noted,
Although the first prong of the Saucier procedure is
intended to further the development of constitutional
precedent, opinions following that procedure often
43
fail to make a meaningful contribution to such
development. For one thing, there are cases in which
the constitutional question is so factbound that the
decision provides little guidance for future cases.
See Scott v. Harris, 550 U.S. 372, 388 (2007) (BREYER,
J., concurring) (counseling against the Saucier two-
step protocol where the question is “so fact dependent
that the result will be confusion rather than
clarity”); Buchanan v. Maine, 469 F.3d 158, 168 (C.A.1
2006) (“We do not think the law elaboration purpose
will be well served here, where the Fourth Amendment
inquiry involves a reasonableness question which is
highly idiosyncratic and heavily dependent on the
facts”).
Pearson, 555 U.S. at 237.
My fine colleagues in the majority have done as good a job
as can be expected given the circumstances. But the very
exemplary quality of the effort serves to illustrate the perils
of the enterprise. The majority notes “that different seizures
present different risks of danger,” Maj. Op. at 24, but fails to
recognize that the spectrum of risk presented cannot be easily
sketched by an appellate court. It is hard to disagree with the
majority’s highly generalized assertion that Taser use is
unwarranted “where an unrestrained arrestee, though resistant,
presents no serious safety threat.” Id. But of course, what
conduct qualifies as “resistant,” and what rises to the level of
a “serious safety threat” is once again dependent on the actual
and infinitely variable facts and circumstances that confront
officers on their beat.
44
Tasers came into widespread use for a reason. They were
thought preferable to far cruder forms of force such as canines,
sprays, batons, and choke-holds, and it was hoped that their use
would make the deployment of lethal force unnecessary or at
least a very last resort. None of this of course justifies their
promiscuous use. The majority “tie[s] permissible taser use to
situations that present some exigency that is sufficiently
dangerous to justify the force.” Maj. Op. at 23. But with all
due respect, that abstract formulation will be of less than
limited help to officers wondering what exactly they may and may
not do.
We are told further that the officers, though armed with a
civil commitment order, do not possess the same degree of
latitude with regard to a mentally ill person as with someone
whom there is reason to believe has committed a crime. Id. at
14-15. All well and good, but the majority then notes that
“[m]ental illness, of course, describes a broad spectrum of
conditions and does not dictate the same police response in all
situations.” Id. at 15. Again, what may seem a comforting
appellate nostrum is of limited utility to those faced with
volatile situations far removed from the peaceful confines of
appellate chambers. The majority goes on to note that “in some
circumstances . . . increasing the use of force may . . .
exacerbate the situation.” Id. (internal quotation marks
45
omitted). But what those circumstances are neither my colleagues
nor I can really say.
I finally cannot agree that the plaintiff here posed no
real danger. He certainly posed a danger to himself having been
off medication and engaging in self-destructive behaviors to the
point that his sister was pleading for her brother’s prompt
return to the hospital where he might receive some help. As for
the danger to others, it was hardly unlikely that the plaintiff,
a sizeable and unrestrained individual, would bolt into the
street and cause a traumatic accident for motorists who, if not
themselves injured, would regret the harm inflicted on this
pedestrian for years to come. I say this not to contend that the
case was easy, but that it was hard. The district court rightly
recognized that its intrinsic difficulty afforded no reason to
deliver these officers an unnecessary rebuke.
III.
The majority has left it all up in the air. And its
approach to this case is not without consequence. The great
majority of mentally ill persons pose no serious danger to
themselves or others and the challenge of society is to help
these good people lead more satisfying lives. A smaller subset
of the mentally ill do pose the greatest sort of danger, not
only to themselves but to large numbers of people as the string
of mass shootings in this country will attest.
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It is difficult sometimes for even seasoned professionals
to predict which is which, not to mention officers and others
with more limited training. And yet it is important in this area
that law not lose its preventive aspect. It can be heartbreaking
to wait until the damage is done. Delivering vague proclamations
about do’s and don’ts runs the risk of incentivizing officers to
take no action, and in doing so to leave individuals and their
prospective victims to their unhappy fates. Law enforcement will
learn soon enough that sins of omission are generally not
actionable. See Deshaney v. Winnebago Cty. Dep’t of Social
Services, 489 U.S. 189 (1989). And in the face of nebulae from
the courts, the natural human reaction will be to desist.
Perhaps this is what we mean to achieve, but over-deterrence
carries its own risks, namely that those who badly need help
will receive no help, and we shall be the poorer for it.
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