Revisiting the 4th Circuit's Recent Taser Excessive Force Case

Posted by Sean P. CecilMar 23, 20160 Comments

Back in January, I wrote about the 4th Circuit's precedent-setting excessive force case, Estate of Armstrong v. Village of Pinehurst. Since that time, I have had a chance to more thoroughly parse the decision issued by Judges , Keenan, Thacker, and Wilkinson(concurring), and decided a more thorough case summary which includes important details is warranted. 

The case began as an appeal of the trial court's order granting qualified immunity summary judgment on Plaintiff estate's excessive force claim. Mr. Armstrong was bi-polar and paranoid schizophrenic; during nasty episode his sister convinced him to go to hospital, but he became scared and fled the Emergency Department. The examining doctor deemed Armstrong a danger to himself and issued involuntary commitment (IVC) papers to compel his return to the hospital. Importantly, he was designated only a “danger to self” and not a danger to others.

Police were called immediately after Armstrong left the hospital, but the IVC order was not yet finalized, so the responding officers engaged him in conversation; everyone was calm and cooperative. As soon as the IVC papers complete cops surrounded and advanced on him.

Armstrong refused to let go of a stop sign. Thirty seconds (!) after finalization of IVC order Lt on scene ordered tazing. Tazed 5 times, and didn't help. Finally five men (including law enforcement and hospital security) pried him off the sign, cuffed and shackled him. During that scuffle he complained of being choked; witness did not see any chokehold but did see them pulling at his collar in a way that could be choking.

District Court: The district court granted summary judgment (dismissing the case) 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). Armstrong's Estate appealed.

Qualified Immunity protects certain governmental officials from legal liability in certain situations, except when there is: 1) violation of a constitutional right 2) that was clearly established at the time of the incident. 

Violation of a Constitutional Right 

1) The court of appeals concluded that law enforcement violated Mr. Armstrong's constitutional right. The standard is objective reasonableness. This standard is not susceptible to precise or mechanical application, but requires careful balancing of the nature and quality of the intrusion on the individual's 4th amendment interest against countervailing govt interests. Three factors:

  1. Severity of crime at issue
  2. Whether suspect poses an immediate threat to the safety of the officer
  3. Whether actively resisting arrest or attempting to evade arrest by flight

(Graham factors). “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.'” Graham factors favored Plaintiff/Appellant- no allegation that he committed a crime or that the police had probable cause to arrest. This weighs heavily in Plaintiff's favor. The court also acknowledged that “this first Graham factor is intended as a proxy for determining whether “an officer [had] any reason to believe that [the subject of the seizure] was a potentially dangerous individual.” While he had committed no crime, the legal basis of seizure did put cops on notice of two facts that bear on the question of a reasonable belief of dangerousness.

  1. Mentally ill (fact and circumstance a reasonable officer on the scene would ascertain) "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." The court recognized that it is best for officers with proper training to deal with these types of situations.
  2. That the seizure was to prevent him from harming himself. 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. 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.

Second and third Graham factors, however, did justify some use of force. When officers arrived, Armstrong was wandering in traffic,  the seizure took place a few feet from passing cars, and Plaintiff had fled from hospital…concerns that he might try to flee into the street to avoid returning hospital were objectively reasonable. But the justified use of force was such as to be reasonably calculated to prevent his flight. The degree of force necessary to prevent an individual who is affirmatively refusing to move from fleeing is obviously quite limited. Noncompliance with lawful orders justifies some use of force, but the level of justified force varies based on the risks posed by the resistance.

When viewing the proportionality of the force “in light of all these circumstances it becomes evident that the level of force appellees (law enforcement) 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. 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. 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 could be mitigated by the use of force. At bottom, "physical resistance" is not synonymous with "risk of immediate danger."

A taser, 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. 

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 and two Hospital security guards, and had failed to submit to a lawful seizure for only 30 seconds- the use of the taser violated his constitutional right to be free from excessive force. 

Right not Clearly Established

The court went on to opine (at length) that the standard they described was not clearly described so Plaintiff's allegations, even if true, fail the second prong of the qualified immunity test- that the right allegedly violated was “clearly established” at the time of the incident. That standard is now clearly established for the benefit of the next non-violent non-compliant individual who encounters law enforcement- unfortunately for Mr. Armstrong and his estate the dismissal of the case was affirmed.

Civil rights cases alleging excessive force or unlawful detention are difficult to win. Our firm has experience litigating the cases, but is careful about the cases we can accept, because they are expensive to prosecute and there are myriad ways to lose them. We also do not handle police misconduct cases in Wake County because of a conflict of interest. However, if you think you were unlawfully tazed or subject to excessive force, we are available and willing to help. We do not charge a consultation fee for these types of civil rights cases.