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Qualified immunity for TASER probe to the head

The appellate court began by citing other cases in which the court “held that it’s reasonable for officers to tase fleeing suspects”

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Brown v. Giles, 2024 WL 938493 (6th Cir. 2024)

Jorden Brown was homeless and struggling with addiction. He showed up at the pizza place where his mother worked, hoping for a meal and a place to crash. Instead, Brown’s mother called the police and reported Brown had an outstanding warrant for his arrest. When a responding officer asked Brown for his name, Brown repeatedly provided a false name, even when the officer asked if his last name might be “Brown.”

The officer asked Brown several times to stay in his car. Nonetheless, Brown got out of the car and began to run; the officer chased him. Without commanding Brown to stop, or providing any verbal warning, the officer quickly fired a TASER device at Brown. One probe struck Brown’s head and the other struck his back. Brown fell to the ground and hit his head.

Brown sued, alleging excessive force and violation of his Fourth Amendment rights. He also claimed the officer used the TASER on him a second time, firing the TASER in drive stun mode when Brown was on the ground. Finally, Brown claimed department policies or customs supported these violations. The trial court granted a dismissal on the grounds that Brown failed to allege a violation of clearly established law. Brown appealed.

The appellate court began by citing other cases in which the court “held that it’s reasonable for officers to tase fleeing suspects.” Thus, the fact that the officer fired a TASER into his back as he ran was not enough to establish excessive force. Brown tried to distinguish his case from precedent by claiming the officer intentionally targeted his head with the TASER probe, but the court disagreed: “We doubt that this difference matters in the context of a mid-chase decision to tase a fleeing suspect. It’s difficult to imagine how a sprinting officer could aim his taser precisely enough to (1) hit a suspect with both taser probes while (2) ensuring that neither probe hits the suspect’s head. It’s even harder to imagine that the Fourth Amendment requires such a feat. That’s precisely why we defer to the ‘split-second’ decisions of officers in fast-paced, complex situations.”

Relying on the officer’s body-worn camera recording, the court made short work of Brown’s claim that the officer used the TASER in drive stun mode after Brown was subdued. The body camera video showed the officer energized the TASER just once. “In this context, we don’t need to accept as true any allegation blatantly contradicted by the video.” The court acknowledged TASER devices “make noises in both probe and drive-stun mode,” and that the court heard only the noise associated with a single discharge. “The lack of noise utterly discredits Brown’s claim.”

The court held the officer was entitled to qualified immunity. And because Brown’s claims against the officer failed, his claims against the chief and the city were also dismissed. The dissenting judge opined that the officer should have been on notice that firing a TASER to the head amounts to a significant physical intrusion requiring a correspondingly significant justification. Brown’s arrest warrant was for the failure to pay a fine. The dissent would not have affirmed the grant of qualified immunity for the officer. Additionally, the dissent disagreed with the majority’s reliance on the audio evidence from the body-worn camera video to bolster the officer’s claim of only a single discharge of the TASER.

Many department policies require that, “A verbal warning of the intended use of the TASER should precede its application, unless it would otherwise endanger the safety of officers or when it is not practicable due to the circumstances” (Lexipol Conducted Energy Device Policy). The warning provides the individual with a reasonable opportunity to voluntarily comply and lets other officers know a TASER may be deployed. Officers are also cautioned to avoid using a TASER where persons whose position or activity is likely to result in a collateral injury (e.g., falls from height, located in water, operating vehicles) (Lexipol Conducted Energy Device Policy). Though the officer may not have intentionally targeted Brown’s head, the recommended TASER target areas include the back, lower center mass and upper legs of the subject. Officers are cautioned to avoid intentionally targeting the head, neck, area of the heart, or genitals (Lexipol Conducted Energy Device Policy).

Thanks to Mike Brave for bringing this case to my attention.

Read more Ken Wallentine case reviews here.

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.