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Was electronic control device use proper? You decide!

Consider a roundtable discussion of these two cases during roll call training

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Would your agency policy allow the use of an ECD to coerce a new prisoner into being photographed upon entering the jail?


This article was featured in Lexipol’s Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

Consider the facts in the following two recent cases and decide whether the use of an electronic control device (ECD) was consistent with your training and your agency’s policies. Consider a roundtable discussion of these cases during roll call training.

Brooks v. Johnson, 2019 (4th Cir. 2019)

Altony Brooks was transported from a state prison to a county jail for an overnight stay prior to a court hearing. The jail’s policy required that any new prisoner be photographed upon entering the jail. Brooks claimed to be a sovereign citizen and said he would not be photographed.

When officers handcuffed him and placed him in front of the booking area camera, Brooks used “aggressive” language and verbally threatened some of the deputies. Brooks shook his head from side to side and bent over to thwart the effort to take his photo.

The video showed the six officers, who flanked Brooks, tried to persuade him to cooperate for approximately seven minutes. When Brooks still did not cooperate, one of the deputies aimed a TASER device at him and said she would deploy the device if he did not cooperate. When Brooks continued to move, the deputy fired probes into Brooks and he fell to the floor. Brooks did not get up quickly and 16 seconds later the deputy re-energized the device. At the conclusion of the energy cycle, two officers lifted Brooks in front of the camera.

Brooks claimed he was trying to cooperate at that point, but he was involuntarily moving due to the effects of the device. The deputy believed Brooks was not cooperating, and she pulled the trigger for a third cycle. As Brooks once again began to fall, two other deputies caught him. They were then successful in taking his photograph.

The question before the appellate court was whether the use of three energy cycles on Brooks was a “good faith effort” to induce his cooperation in having his picture taken or, as Brooks claimed, a malicious punishment for the very purpose of causing harm.

  • Was using the ECD the best option to capture Brooks’ photo (assuming it was a reasonable option)? What other means might the deputies have tried to obtain Brooks’ photo?
  • Think back to your training and pull out your agency policy. Would your agency policy allow the use of an ECD to coerce Brooks to cooperate with the photo session?

The Brooks court began its analysis by reciting the difficult threshold standard Brooks had to meet: showing the deputies “acted with a sufficiently culpable state of mind” of “wantonness in the infliction of pain,” as articulated by the Supreme Court in Whitley v. Albers (475 U.S. 312 [1986]). The court stated, “corrections officers cross the line into an impermissible motive – using force ‘maliciously’ and for the ‘very purpose of causing harm,’ – when they inflict pain not to induce compliance, but to punish an inmate for intransigence or to retaliate for insubordination.”

The Brooks court expressed concern over the three energy cycles in quick succession, suggesting the quick, repeated energy cycles might give a clue to the deputy’s motives: “The continued application of force may give rise to an inference that force was used for malicious or punitive purposes.” The judges held a “jury might find that the second use of the taser, in particular, is hard to square with the officers’ account.”

The court reversed the grant of qualified immunity for the deputies and remanded the matter for a jury trial.

Piazza v. Jefferson County, 2019 (11th Cir. 2019)

In the second case, Ricky Hinkle was arrested for public intoxication. Hinkle had a medical history of alcoholism, heart disease and depression. When Hinkle began showing alcohol-withdrawal symptoms and exhibiting delusional behavior, deputies moved him to a location where he could be monitored more closely.

Hinkle crouched in the corner of his cell, out of range of the camera. A deputy called out to Hinkle over the loudspeaker. When Hinkle didn’t respond, a deputy checked the cell and found Hinkle in the corner, wearing only underpants and shoes. Hinkle said he “wanted to die.” The deputy decided to move Hinkle to a padded cell. As they walked toward the cell, Hinkle initially cooperated, but then ran down the hallway to the bathroom and grabbed a shower curtain (“Not the curtain rod, mind you – the curtain.”). The deputy took the curtain away.

A second deputy arrived. When Hinkle resisted efforts by the deputies to push him into the padded cell, one of the deputies shot ECD probes into Hinkle’s chest, just above his heart. Hinkle fell to the floor on his right side, lost bladder control and urinated on himself. The deputy ordered Hinkle to roll over, but Hinkle remained unresponsive and motionless. Eight seconds after the first cycle, the deputy energized the ECD for another five seconds. Hinkle died.

Particularly for corrections deputies, this is a case worth the time to carefully read. You can find the court decision here. The case addresses a number of vital questions, including:

  • What constitutional provision governs the use of force against a pre-trial detainee? Fourth, Eighth or 14th Amendment?
  • What doctrinal standard guides the court’s analysis of the force? How should a court decide when force is reasonable and when it is , or when it is “excessive in relation to its purpose?”
  • And the vital question stated by the court: “Is it excessive to tase [sic] for a second time a man who, as a result of an initial shock, is lying motionless on the floor and has wet himself, and who presented only a minimal threat to begin with?”

Cut to the chase on this one and answer these questions for yourself or in roll call training:

  • What did you learn in your training about best practice target zones for an ECD?
  • Would your training and policy, and perhaps your common sense, permit a second full energy cycle on an unresponsive, likely unconscious, subject lying motionless on the floor? Could there be an analogy of “moving into the cell under power” to the principle of “cuffing under power?”

The deputy asserted he should be entitled to qualified immunity. He argued he was forced to make a “split-second” decision of whether to pull the trigger for a second full energy cycle. He also argued Hinkle “refused” (while he was unresponsive on the floor) to roll over.

The court emphatically rejected both arguments, explaining:

Habimana Dukuzumuremyi (“the deputy”) contends that because Hinkle failed to obey the subsequent order to roll over and be handcuffed, he was not yet fully compliant. Because Hinkle was not following commands, the argument goes, the second shock couldn’t have crossed the constitutional line. Wrong. It seems to us totally unreasonable to expect that a man who is lying on the floor immobilized – and incontinent – following a TASER shock should pep up, roll over, and submit to handcuffing within eight seconds. But, the deputy counters, [plaintiff]’s complaint doesn’t specifically allege that Hinkle “could not” roll over, only that he “did not.” Come on. The only reasonable inference is that Hinkle, who was lying motionless on the floor after a five-second taser shock – unable to hold his own urine – “did not” immediately roll over because he “could not.” (Really, is there any surer indication of a grown man’s inability to control his bodily functions than his wetting himself?)

The same facts undermine the deputy’s contention that the second shock should be swept into the zone of reasonableness by the deference owed an officer’s split-second decisions. Although we don’t for a minute discount the difficult decisions that jail officers must make in the heat of a tussle, simply counting to eight aloud reveals the problem with the deputy’s argument. In eight seconds, you can tie a shoe, sing the chorus of “Row, Row, Row Your Boat,” or complete a qualified rodeo bull ride. And in eight seconds, we believe, any reasonable officer would have concluded that a detainee who lay inert on the floor, having soiled himself, was no longer putting up a fight.

The court agreed the first ECD deployment was constitutional, whether or not it was the best option at the time. But the second energy cycle was plainly unconstitutional: “As relevant to this case, our decisions make one thing clear: ‘Once a prisoner has stopped resisting there is no longer a need for force, so the use of force thereafter is disproportionate to the need.’”

Ken Wallentine is the chief of the West Jordan (Utah) Police Department and former chief of law enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.