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COLUMN: The Law in Real Life: Court Decision on Taser Use Raises Questions About Excessive Force

COLUMN: The Law in Real Life

by Linda Holmes, J.D.

Court Decision on Taser Use Raises Questions About Excessive Force

Sept. 16, 2008

Late one night in March 2004, Jonathan Rackard, a Washington County, Fla., deputy sheriff, stopped Jesse Buckley for speeding. Buckley began sobbing and would not sign the traffic citation. Failure to sign the citation subjected Buckley to arrest, so Rackard handcuffed him without resistance and moved him toward the patrol car.

On the way to the car, Buckley collapsed in the grass at the side of the road, still in handcuffs. Rackard ordered Buckley to move to the patrol car, but Buckley remained seated in the grass, sobbing. Rackard warned Buckley that he would be hit with a taser if he did not walk to the patrol car. When Buckley didn’t move but merely continued sobbing, Rackard applied the taser to his chest and back for five seconds.

That application left Buckley lying on the ground, still handcuffed. Seconds later, Rackard again demanded that Buckley stand, and Buckley did not respond. Within 20 seconds of the initial application, Rackard applied another burst and then called for backup. During the approximately three minutes it took for backup to arrive, Rackard applied the taser a third time. When the second officer arrived, the two moved Buckley to the car. Buckley ultimately suffered 16 burns on his back and chest, some of which led to scarring.

Last week, an unpublished decision by the 11th U.S. Circuit Court of Appeals concluded that the force applied to Buckley was not unconstitutionally excessive, over a dissent that sharply suggested that the video of the incident be made public along with the court’s decision. The video has not been made public. Because the decision is unpublished, it can’t be relied on in future cases, and in any event, it seems that the three judges on the panel split three ways: The judge who wrote the decision believed the use of force was not unconstitutionally excessive, the judge who concurred in the result believed the final taser blast was excessive but believed the defendants enjoyed official immunity because it wasn’t clearly established as unconstitutional, and the judge who dissented believed Buckley’s clearly established rights were violated and he could recover.

Fourth Amendment Test

The legal issues are not complicated, in one sense. Everyone agrees that excessive force in effecting an arrest violates a suspect’s rights under the Fourth Amendment, and everyone agrees on the basic test. The three parts are (1) the need for force, (2) the relationship between the need and the degree of force and (3) any injury that results. More specifically, the U.S. Supreme Court has stated that courts must look to “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”

The interesting question raised by the case is this: How much pain may an officer inflict on a suspect who is passively resisting, not to subdue any threat but to coerce the suspect to follow directions?

In this case, the “severity of the crime” is probably as low as it could be because Buckley’s only offense, other than speeding, was failing to sign his citation. Nothing in the record suggests that Buckley posed any threat. He was handcuffed, was seated cross-legged at the side of the road and made no aggressive moves toward the officer or anyone else at any time during the encounter.

The word “actively” in the phrase “actively resisting arrest” can be intended only to distinguish between passive and active resistance, and Buckley’s only resistance was passive — he essentially collapsed to the ground. All three factors identified by the Supreme Court, therefore, seem to suggest that force causing a permanent injury — such as scarring — would be inappropriate in this case.

No Gain from the Pain

Other factors suggest the same result. As the dissent points out, a taser is a questionable tool to use in trying to make someone stand up. Tasers used in their traditional mode are designed precisely to incapacitate. The way the taser was used here, in contact with the body instead of using darts, is intended to be less incapacitating than the dart mode and is meant to cause pain instead, but it certainly isn’t clear that Buckley could have stood up three seconds after the first five-second tase, when Rackard next ordered him to stand.

The imminent arrival of backup also is problematic. The entire incident was captured on video, and the case reports that about five minutes passed between the first application of the taser and the arrival of the second officer. In fact, as the dissent points out, department policy requires that backup be summoned as soon as a taser is used. Knowing that another officer had to arrive, why strike Buckley with the taser a second and third time, at least provided Buckley remained seated and didn’t try to move? The opinion suggests that this is irrelevant because the department has the right to arrest a suspect by force rather than using its resources to send a second officer, but if policy required the second officer as soon as the taser was used, then the taser does nothing to conserve resources; it does the opposite.

In short, the taser does not appear to have had any likelihood of actually solving the problem. Though it might be controversial, using pain to incapacitate someone behaving aggressively at least has the effect of interrupting the behavior. Here, the taser was, as the dissent notes, essentially used as an electric prod — as corporal punishment for not following directions.

Law Enforcement or Excessive Force?

The use of force as punishment is very different from the use of force to subdue a dangerous person;  that’s why the danger is part of the applicable test. Here, the taser did not help in effecting the arrest. Had Buckley been actively resisting so that the officer could not, for instance, attempt to move him by force, then the taser might interrupt the resistance by incapacitating or distracting him. This is the thinking when an unruly crowd is hit with pepper spray. But here, causing Buckley pain got him no closer to the car.

It is interesting to contemplate the consequences of this unpublished opinion were it to become a widely applied precedent. The majority carefully points out — rather shockingly, in context — that certainly, the case would be different if Rackard had beaten Buckley in the head with a club or (this is specifically mentioned) had shot him. It is not entirely comforting to see a court go so far as to confirm that it might have been excessive — it would be “different” — for Rackard to shoot a handcuffed traffic offender for not walking to the patrol car when an officer told him to.

But the qualification about beating him on the head with a club is an interesting one. Is the suggestion that it would be OK for an officer to kick a suspect for an entirely passive failure to follow instructions? Are people ready to see seated, passive defendants who fail to comply with instructions during traffic arrests being kicked and punched so an officer doesn’t have to call for backup?

Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.

Buckley v. Haddock, No. 07-10988 (11th Cir., Sept. 9, 2008).
Graham v. Connor, 109 S.Ct. 1865 (1989).

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