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It should come as no surprise to law enforcement officers that civil rights lawsuits directed against patrol officers, their superior officers and their municipalities regarding TASER deployment continue to be filed in multiple federal courts of appeal across America. Some of the most recent cases are worthy of examination and close scrutiny. By analyzing these cases, we can glean constitutional guidance concerning when the use of a TASER is lawfully appropriate and when it is constitutionally excessive.

In Yates v. Terry, the Fourth Circuit Court of Appeals affirmed a lower court ruling against a North Charleston, South Carolina officer who was accused of using excessive force by means of a TASER against Brian Yates. Yates passed the officer, who was in his police cruiser in a stationary position. The officer pulled out, activated his lights and pulled Yates over in a gas station parking lot. The case does not make clear why the officer pulled Yates over.

The officer approached Yates and requested his drivers license. Yates responded that he did not have his license, but did have his military identification (Yates was a sergeant in the Army). The officer opened Yates car door, forced Yates out of the car and told him to place his hands on the car. Yates complied and was told he was under arrest. Yates asked for an explanation, but none was provided. Yates turned his head to the left and the officer deployed his TASER in the probe mode. The court explained, In probe mode, two probes are fired from a distance, attached to electrical wires, to lodge in the skin of the subject.

The TASER delivers a five-second cycle of electricity (50,000 volts) designed to override the central nervous system, disabling the subject. Yates fell to the ground, and the TASER was deployed again while Yates remained on the ground. While still on the ground, Yates told his brother who was standing nearby to call the officers commanding officer and reached for his cell phone. He was TASERed a third time.

Yates was handcuffed when other officers arrived and charged with excessive noise violation, no license in his possession and disorderly conduct. All charges were subsequently dismissed. Yates sued the officer and alleged that the use of the TASER in these circumstances amounted to excessive force. Both the Federal District Court Judge and the Fourth Circuit Court of Appeals agreed with Yates that excessive force was used.

The Fourth Circuit examined the factors articulated by the United States Supreme Court in Graham v. Connor. These include the severity of the crime, the immediacy of the threat to officers or others and whether the suspect was resisting arrest or attempting to flee. The Fourth Circuit noted that the infractions that Yates was arrested for were at best minor and non-violent. The Fourth Circuit ruled that Yates represented no threat to the officers safety at the time the TASER was first deployed or during the second and third TASER deployments. The Fourth Circuit also determined that Yates was not resisting or attempting to flee during the TASER deployments.

The Fourth Circuit explained that deploying a TASER is a serious use of force that is designed to inflict a painful and frightening blow, (Armstrong v. Pinehurst, 810 F.3d 892, 902 (4th Cir. 2016)). The Fourth Circuit ruled that a TASER may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk that is reasonably likely to be cured by using the TASER. Here there was no immediate safety risk in play. Moreover, the offense was nonviolent and there was no resistance or attempt to flee.

In Lash v. Lemke, U.S. Park Police entered an encampment of the so-called Occupy D.C. movement in Washington D.C. to warn protestors that they would be enforcing anti-camping regulations the next day. Their entrance was met with hostility. Ryan Lash, a protestor, challenged the officers right to enter; used profanity and tore down signs the officers had posted. Lash walked away and the officers followed. Lash loudly protested the fact that officers were following him and continued to walk away and proclaim his innocence.

An officer seized Lashs arms from the rear. Lash pulled his arms away and held them in front of his body. He continued to walk away. The officer once again sought to restrain Lash from behind. Lash again pulled his arms away. Two officers grabbed each of his arms, but Lash resisted and continued to struggle. A third officer deployed her TASER. Lash fell to the ground and was handcuffed. He was subsequently charged with disorderly conduct.

Lash sued the officer who deployed the TASER for excessive force and her supervisor for failure to supervise. The Federal District Court ruled in favor of the officers and the Federal Court of Appeals for the D.C. Circuit affirmed. In reaching its decision, the Circuit Court had the advantage of viewing videotape of Lashs arrest. With the help of the videotape, the court quickly rejected Lashs claims that he submitted to arrest as soon as he understood that the officers were trying to arrest him. The court observed, No matter what Lash claims now, we know to a certainty that he resisted arrest because we can see him doing so.

The court examined existing case law and concluded that the TASER use in this instance did not violate clearly established Fourth Amendment law. The court explained that there is no clearly established right for a suspect who actively resists and refuses to be handcuffed to be free from a Taser application, (Goodwin v. City of Painesville, 781 F.3d 314, 325 (6th Cir. 2015)). The court cited numerous other Federal Circuit opinions to support its conclusion, specifically, Abbott v. Sangamon County, Ill., 705 F.3d 706, 727 (7th Cir. 2013); Hagans v. Franklin County Sheriffs Office, 695 F.3d 505, 509-510 (6th Cir. 2012); DeBoise v. Taser International Inc., 760 F.3d 892, 897 (8th Cir. 2014); Buchanan v. Gulfport Police Dept., 530 Fed. Appx 307, 314 (5th Cir. 2013).

In Meyers v. Baltimore County, officers were called to a domestic disturbance which involved Ryan Meyers hitting his father and brother and taking refuge inside his home. Officers were informed upon arrival that Ryan was bipolar and had mental health problems. Officers could see Ryan inside the residence holding a baseball bat. Officers tried to talk him into surrendering without success. They were able to enter the home with the assistance of the family. Ryan was ordered to drop the bat but refused. One officer deployed his TASER to no effect. Ryan took two steps toward the police with the bat. The TASER was deployed a second time and Ryan dropped the bat but continued forward. A third deployment of the TASER resulted in Ryan dropping to the floor. Three officers sat on his back. At this point, Ryan was TASERed a fourth time. The officer then switched the TASER into stun mode and applied it six more times during a little more than a minute. Ryan entered into cardiac arrest and died. An excessive force lawsuit followed.

The Fourth Circuit Court of Appeals ruled that the first three deployments of the TASER were constitutionally reasonable. The court explained that at the time of these deployments, Ryan 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 until the third shock caused him to fall to the ground. The court determined that he posed an immediate threat to the officers safety and was actively resisting arrest.

Conversely, the court ruled that the remaining seven TASER deployments amounted to excessive force in violation of the Fourth Amendment. The court explained that after Ryan fell to the floor, he was no longer actively resisting arrest, and did not pose a continuing threat to the officers safety, yet, Officer TASERed Ryan until he was unconscious. This, in the courts view, was an unnecessary, gratuitous, and disproportionate [use of] force to seize a secured, unarmed citizen.

This review establishes some basic principles regarding the use of the TASER:

John M. Mike Callahan Jr. served in the field of law enforcement for 44 years. He was appointed as a Special Agent with the United States Naval Criminal Investigative Service, appointed as a Special Agent with the FBI and advanced to the position of Chief Division Counsel and handled all legal matters for those FBI Divisions. After his FBI career, Mr. Callahan was hired by the Massachusetts Office of the Inspector General and served for several years as a Deputy Inspector General in charge of the Investigations Division before retiring in July 2012.

Contact Mike Callahan

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What cops need to know about TASER use, the Fourth Amendment ... - Police News