CEWs and non-violent resisters: A court weighs “excessive force”

Attorney Laura Scarry says that law enforcement trainers to develop effective tactics that do not involve pain compliance for controlling subjects who are resistant, mentally ill, but not violent toward others

In light of a recent restrictive appellate court decision, a prominent police attorney is calling on law enforcement trainers to develop effective tactics that do not involve pain compliance for controlling subjects who are resistant, mentally ill, but not violent toward others. 

The challenge was issued by attorney Laura Scarry, an instructor for both the Force Science Certification Course and FSI’s body camera course, during a dissection of the case at the annual training conference of the International Law Enforcement Educators & Trainers Assn. (ILEETA) last month. 

In a decision on January 11, the majority of a three-judge panel of the 4th Circuit of Appeals ruled in a civil rights lawsuit that officers used “unconstitutionally excessive force” by delivering CEW drive-stuns to a stationary, non-threatening mental patient who resisted being taken into custody by passively clinging to a signpost while seated on the ground. 

Stating that a subject’s mental health should be factored into use-of-force decisions, the panel declared that employing a CEW in any mode is “serious injurious force” and is inappropriate when dealing with suspects who are not “serious threats or posing an immediate danger” to anyone besides themselves. (“Serious injurious force” is a term not previously recorded in any federal court case found on Westlaw, the legal research service, according to attorney Michael Brave, national/international litigation counsel for TASER International Inc.) 

In the opinion of Brave, who has studied the case and offered observations during Scarry’s presentation as well as during another ILEETA class, the Court’s ruling can be interpreted as applying “to any infliction of pain,” not just to CEW deployment. “Most people who comment about the case,” he said, “miss this important point.” 

The Court’s full decision (Estate of Armstrong v. Village of Pinehurst, et al.) can be accessed free of charge by clicking here.

The decision applies only within the 4th Circuit (Virginia, West Virginia, North Carolina, Maryland, and South Carolina), although it may be referenced by attorneys and courts in arguing litigation in other jurisdictions. While no appeal to the US Supreme Court has been filed at this writing, the parties have until May 4 to do so. 

Here’s the gist of the decision: 

Danger Only to Self
The subject in this case, a 262-lb., 43-year-old man with bipolar disorder and paranoid schizophrenia, had been building toward a breakdown during nearly a week of skipped meds and “odd behavior,” including jabbing holes in his leg with an ice pick “to let the air out.” 

His sister brought him to a regional hospital in a small, golf-resort town in North Carolina, where, during an evaluation, he became scared and “eloped from the emergency department.” Police responded, while a physician who’d decided he was “a danger [only] to himself” prepared papers for his immediate involuntary commitment. 

Within a few minutes, three officers found him nearby, wandering in and out of a busy roadway. They initially engaged him in “calm and cooperative” conversation, despite his eating grass and dandelions and putting cigarettes out on his tongue. But once they learned the commitment papers were complete and moved to take him into custody, he sat down, wrapped himself tightly around a stop sign post “in defiance,” and wouldn’t budge despite their trying to pry him loose. Pleas from his sister and the arrival of two hospital security officers proved unpersuasive. 

After a standoff of “just 30 seconds or so” after the officers learned the commitment papers were complete, one of the officers warned the subject that he “would be tased” if he didn’t comply. When that advisory had no effect, the officer discharged his TASER X26 CEW in drive-stun mode to the subject’s shoulders — “five separate times over a period of approximately two minutes.” That “actually increased [his] resistance,” according to the appellate decision. 

Finally, all five officers were able to grapple him free of the post and shackled him in a prone position in the grass. He continued to kick and struggle...until “he was no longer moving--at all.” 

Resuscitation efforts failed. Cause of death, per the ME’s autopsy report: “Complications of excited delirium syndrome.” 

Courts Speak
A federal district court readily dismissed an excessive force complaint from the subject’s estate by granting the officers summary judgment on grounds of qualified immunity. 

On appeal, the 4th Circuit panel sustained that decision on technical grounds. Nonetheless, the majority of the panel declared that the officers did unconstitutionally use “unreasonably excessive force,” and established a rigorous standard that LEOs would be expected to meet going forward. 

In its 39-page decision, written by Judge Stephanie Thacker, the majority focused on the facts that the subject was mentally ill, unarmed, not aggressively combative, and had not committed even a minor crime. 

A subject’s mental health is a factor that a “reasonable officer” must take into account “when deciding when and how to use force,” Thacker wrote. In contrast to the urgent need to seize a dangerous and threatening criminal, taking control of a mentally ill person who poses only a threat to himself “does not vindicate any degree of force that risks substantial harm to the subject.” 

In this case, the subject was seated, “stationary, non-violent, and surrounded by people willing to help return him to the hospital,” the majority decision said. “That [he] was not allowing his arms to be pulled from the post and was 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.... 

“Immediately tasing a non-criminal, mentally ill individual, who seconds before had been conversational, was not a proportional response,” Thacker continued. “Deploying a taser is a serious use of force” inflicting “excruciating pain” and is “proportional force only [when] a reasonable officer perceive[s] some immediate danger that could be mitigated” by using that weapon. 

“[N]on-compliance with police directives and non-violent physical resistance” are “not synonymous” with immediate dangerous risk, Thacker emphasized. That, the majority claimed, is in line with what other federal circuits have held, and cases from other jurisdictions are cited throughout the ruling. 

Future Limits
Even though Thacker and Judge Barbara Keenan believed excessive force was used, the appellate panel still concurred with the district court’s dismissal of the lawsuit. That, Thacker explained, was because it was not so clearly established at the time of the incident that every reasonable officer would have known that the use of a CEW under the circumstances was constitutionally forbidden. 

Going forward, the majority sought to erase any doubt on that score. 

“A taser, like a gun, a baton, or other weapon, is expected to inflict pain or injury when deployed,” the decision stated. “It, therefore, may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk and that is likely to be cured by using the taser. 

“A subject...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.... 

“[L]aw enforcement officers should now be on notice that such taser use violates the Fourth Amendment.” 

One panel member, Judge J. Harvie Wilkinson III, in a separate eight-page opinion, agreed that the case should be dismissed but chastised his colleagues for their conclusions regarding excessive force. 

“This was a close case,” he wrote, “the very kind of dispute in which judicial hindsight should not displace the officers’ judgmental calls.... [C]larity is often illusory. Today’s prescription may not fit tomorrow’s facts and circumstances.... [B]right-line rules at most imperfectly take account of the slight shifts in real-life situations that can alter what are inescapably close judgment calls.... 

“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 [mentally ill] individuals and their prospective victims to their unhappy fates.” 

What’s OK?
Although the Court did not specifically say so, Brave believes that the language undergirding the decision’s key finding can be read this way: “If a person is not perceived to be a flight risk or an immediate threat to officers or others besides himself, you can’t do anything to gain compliance that causes pain.” That would include not only discharging a CEW but using pepper spray, punching, tackling, throwing to the ground, K-9, baton strikes or leverage, or joint locks producing pain. 

The Court offered no direct guidance on what would have been acceptable in the incident at hand. However, in citing a different case the majority favorably mentioned crisis “counseling,” and also noted that the North Carolina subject eventually was freed from the signpost by five officers wrestling him off of it. (Ironically, Brave pointed out, this intense struggle against multiple officers probably inflicted much more dangerous stress and strain on the man’s system than “a few seconds of localized pain” from the drive-stun.) 

Ultimately, though, as challenging as the task may be, “Trainers have a responsibility to adapt or develop solutions on how officers can safely respond to non-violent, non-compliant subjects,” Scarry said.

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