Should a Bright-Line Rule Control Taser Deployment?
The Fourth Circuit’s recent decision in Armstrong v. Village of Pinehurst, 810 F.3d 892 (4th Cir. 2016), cert. denied, 2016 WL 2839881 (S. Ct. Oct. 3, 2016), which established a bright-line rule in regards to taser deployment by law enforcement officers, effectively limits the scope of the “reasonable officer” standard for evaluating excessive force.
The circuits are divided as to what manners of taser use constitute excessive force. Bailey Jennifer Woolfstead, Don’t Tase Me Bro: A Lack of Jurisdictional Consensus Across Circuit Lines, 29 T.M. Cooley L. Rev. 285, 289 (2012). Courts disagree as to what level of force tasers constitute, whether the dart-stun and drive-stun modes should be analyzed differently, and how Graham v. Connor and Saucier v. Katz affect the analysis of taser use. Id. (first citing Graham v. Connor, 490 U.S. 386 (1989); and then citing Saucier v. Katz, 533 U.S. 194 (2001)). For example, the Sixth Circuit held that “[i]f a suspect actively resists arrest and refuses to be handcuffed, officers do not violate the Fourth Amendment by using a TASER to subdue him.” Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012). Conversely, the Tenth Circuit held that excessive force has occurred if an officer uses a taser without any reason to believe that a “lesser amount of force—or a verbal command—could not exact compliance.” Casey v. City of Fed. Heights, 509 F.3d 1278, 1286 (10th Cir. 2007).
Armstrong v. Village of Pinehurst attempted to address this uncertainty in establishing a bright-line rule in regards to tasers. 810 F.3d at 901. The court held that an unreasonable use of force occurred when an officer used a taser in drive-stun mode on a nonviolent suspect resisting arrest, when the suspect posed no flight risk. Id. The court found that an unrestrained suspect who was actively resisting arrest was not a “proportional safety threat” to the use of a taser in drive-stun mode. Id. at 904. The court reasoned that tasers were more serious than other non-lethal tools and constituted “serious injurious force,” in part because they caused “excruciating pain.” Id. at 902, 905–06. Thus, the court held that “a police officer may only use serious injurious force, such as 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.” Id. at 902. It defined “immediate danger” as a danger “so severe that the officer must beget the exact harm the seizure was intended to avoid.” Id. at 906.
Under this “immediate danger” rule, the court concluded that the officer in Armstrong violated the Fourth Amendment. Id. The cogent facts were that “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.” Id. When the taser proved ineffective in subduing the suspect, and the officers resorted to hand-to-hand techniques in controlling him, the court suggested that such techniques were the appropriate level of force. Id. at 906. In doing so, the court implied that hand-to-hand techniques constituted a lower level of force than tasers, and should have been attempted before resorting to a taser. See id. Because “[t]asing Armstrong did not force him to succumb to Appellees’ seizure—he actually increased his resistance in response,” the officers had not “limited themselves to permissible force.” Id. The court warned that law enforcement officers violate the Fourth Amendment when they use tasers under these circumstances, and they will not enjoy qualified immunity in subsequent analogous cases. Id. at 910.
Armstrong drew several conclusions that will significantly impact law enforcement training and practices. Jeff Welty, Fourth Circuit Issues a Major Opinion on the Use of Tasers, N.C. Crim. L. (Jan. 25, 2016, 10:17 AM), http://nccriminallaw.sog.unc.edu/fourth-circuit-issues-a-major-opinion-on-the-use-of-tasers. First, the court categorized tasers as “serious injurious force.” Armstrong, 810 F.3d at 906. Second, the officers should have employed a lower level of force before resorting to the taser because the taser proved, after it was deployed, to be ineffective in subduing the suspect. Id. Third, the court announced a bright-line rule: only circumstances that “present a risk of immediate danger” justified taser deployment. Id. at 905.
The law enforcement community has sharply criticized both the rules and rationale provided by Armstrong. See Memorandum, N.C. Dep’t of Justice, http://ncja.ncdoj.gov/Armstrong-v-Village-of-Pinehurst.aspx (last visited Mar. 2, 2017). Police “worry that if the courts become too proscriptive, officers will be hampered by rigid rules, and may hesitate to act in moments of danger.” Martin Kaste, Court Gets Unusually Specific on Police Taser Gun Use, NPR (Feb. 5, 2016, 5:10 PM), http://www.npr.org/2016/02/05/465744837/court-gets-unusually-specific-on-police-taser-gun-use. The North Carolina Department of Justice argues that Armstrong “ignores that one of TASER’s best attributes is the proven reduction of officer and suspect injuries by allowing control to be effective without officers having to go hands on.” Memorandum, supra. The decision is criticized as promoting “the notion that officers should go ‘hands on’ with the mentally ill and other resisting suspects rather than utilizing TASER to overcome resistance and get the person in handcuffs.” Id.
On the other hand, Armstrong’s bright-line rule addresses growing concerns over the amount of discretion police officers possess over taser deployment. In its discussion of Armstrong, the Baltimore Sun emphasized a study it had conducted which found that:
[I]n one out of every 10 incidents over the three-year period, police discharged the weapon for longer than 15 seconds – a duration that exceeds recommendations from Taser, the U.S. Department of Justice and policing experts.
In addition, officers failed to heed other recommendations, including to avoid repeated drive-stunning and chest shots. They fired the weapons at the chest 119 times in 2014.
Doug Donovan & Mark Puente, Police Officers Could Be Sued over Unconstitutional Taser Use, Courts Find, Balt. Sun (Mar. 26, 2016, 8:15 PM), http://www.baltimoresun.com/news/maryland/investigations/bs-md-taser-project-legal-20160326-story.html.
By proscribing taser deployment under a specific set of conditions, Armstrong’s bright-line rule strays from the “reasonable officer” standard. Graham emphasized that “[t]he 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, 490 U.S. at 396–97. However, current excessive force jurisprudence has been criticized as failing in its attempt to control police violence. Diana Hassel, Excessive Reasonableness, 43 Ind. L. Rev. 117, 119 (2009). Scholars often argue that the “objective reasonableness” standard, when combined with the standard a plaintiff must meet to defeat a defendant officer’s qualified immunity to civil liability, creates a “nearly insurmountable barrier” to recovery. Id. at 118–19. See also Aaron Sussman, Comment, Shocking the Conscience: What Police Tasers and Weapon Technology Reveal About Excessive Force Law, 59 UCLA L. Rev. 1342, 1376–77 (2012) (“Courts routinely tip the Graham balance by devaluing the plaintiff’s narrative and privileging the defendant officer’s narrative, which, despite the many reasons to be skeptical of it, becomes the official narrative. Plaintiffs—who may well also be criminal defendants—‘do not enjoy the presumption of credibility and authority associated with [police] accounts and therefore must struggle to sustain their persuasive power.’”) (alteration in original) (footnote omitted) (first citing David Dante Troutt, Screws, Koon, and Routine Aberrations: The End of Fictional Narratives in Federal Police Brutality Prosecutions, 74 N.Y.U. L. Rev. 18, 97 (1999) (discussing police brutality’s “immeasurable . . . psychic toll” on victims)) (alteration in original); and then citing Tahir Duckett, Note, Unreasonably Immune: Rethinking Qualified Immunity in Fourth Amendment Excessive Force Cases, 53 Am. Crim. L. Rev. 409 (2016) (urging the abolition of the heightened standard a plaintiff must meet to defeat an officer’s qualified immunity and instead proposing to evaluate civil claims by only the “reasonable officer” standard).
The applicability of the “reasonable officer” standard to taser deployment in particular has been questioned because:
[T]asers are (1) widely and increasingly used by police officers in an array of circumstances, including those in which only a minimal threat is presented; (2) capable of causing extreme pain and emotional distress; (3) a technology with effects that are relatively untested, unknown, and fiercely debated by experts; and (4) a technology that in some circumstances can cause severe injury or death.
Sussman, supra, at 1371.
Thus, the uncertainty created by Armstrong, and the ramifications it holds for both law enforcement practices and public safety, demonstrate why bright-line rules controlling police use of particular force tools should be addressed by the Supreme Court.
*Janet Franklin is a second-year student at the University of Baltimore School of Law and a staff editor for the University of Baltimore Law Review. In addition to serving as Law Scholar for Contracts I, she competed on the school’s National Moot Court Team, which won the Best Brief Award in Region III and advanced as a national finalist in the 67th Annual National Moot Court Competition. She currently interns with the Maryland Office of the Attorney General’s Legal Counsel Unit for the Maryland State Police, having previously interned in the chambers of the Honorable Paul W. Grimm, United States District Judge for the District of Maryland. This summer she will serve as a summer associate with Venable LLP.