11th Circuit Decides Taser® Case Involving Six Year Old
by Brian S. Batterton, J.D.
As the prevalence of electronic control devices continues to increase among law enforcement agencies, the need for sound policy and training regarding these weapons becomes evident. One important area involves the use of electronic control devices on young children. At the outset, it is important to note that, in 1989, the United States Supreme Court, in Graham v. Connori, stated that there are three factors that should be considered when evaluating whether or not an officer’s use of force was reasonable under the Fourth Amendment. Officers should therefore consider the following three factors when deciding to use force in any given situation. First, the officer must consider the seriousness of the offense at issue. Second, the officer should consider whether the suspect poses a threat to the officer or others. Third, the officer should consider whether the suspect is actively resisting arrest or attempting to evade arrest by flight. The Supreme Court also noted that, since officers are forced to make “use of force” decisions in tense, rapidly evolving circumstances, the officer’s decision should not be judged with 20/20 hindsight, but rather from the perspective of a reasonable officer on the scene. Therefore, when deciding whether the use of an electronic control device is appropriate, officers should consider those three factors.
In June of 2008, the Eleventh Circuit Court of Appeals decided Moretta v. Abbott, et al.ii, which involved the use of a Taser on Isiah Allen, a six year old first grader that stood three feet five inches tall and weighed fifty-three pounds. This case began on October 20, 2004, when Allen, was escorted to the principal’s office for disciplinary purposes. In the office, Allen was involved in a physical altercation with the school security officer. He was then left alone, locked in the office. There, he broke a picture frame. Upon hearing the glass break, school personnel opened the door and saw Allen backed into a corner of the office holding a ½ inch piece of glass in his hand. The school personnel then called the police.
A Miami-Dade County police officer arrived and was led to the office. When the office door was opened, she observed Allen still backed into a corner clutching the small piece of glass. She knelt down and attempted to talk to Allen; he did not respond to her and remained motionless and passive. Soon thereafter, another Miami-Dade officer arrived as well as an officer from the School Board of Miami-Dade County. After a discussion of various options, they decided to deploy a Taser on Allen. One officer positioned herself approximately one and a half arms lengths from Allen. According to plaintiff’s complaint, Allen made no offensive movements toward the officers and remained passive and non-threatening. At this point, Allen was shot with the Taser.
Allen fell to the floor and was handcuffed. He then vomited. According to the complaint, Allen suffered severe mental and physical suffering which has resulted in large medical bills.
Allen’s guardian, Sharon Moretta, filed suit against the Miami-Dade County officers on his behalf and alleged that the officers used excessive force in violation of the Fourth Amendment. The district court, in Moretta v. Miami-Dade County et al.iii, denied the two Miami-Dade County police officer’s qualified immunity.
The Eleventh Circuit Court of Appeals agreed with the district court. After examining the record, the court held that, even though there was not factually similar case law on record that declared the officers conduct unconstitutional, an officer can still have “fair warning” that his or her conduct is unconstitutional when the violation would be “obvious.” Stated another way, the conduct at issue must be an obvious constitutional violation to any reasonable officer even though there is not case law that addresses the conduct. The court then held that:
We conclude that, at the time of this incident ... every reasonable officer would have known that the taser force used under these circumstances was unlawful. The conduct at issue here lies so obviously at the very core of what the Fourth Amendment prohibits, that the unlawfulness of the conduct was readily apparent to an official in the shoes of these officers.iv
Therefore, the Eleventh Circuit Court of Appeals affirmed the denial of summary judgment for the officers in this case.
i 490 U.S. 386 (1989)
ii 280 Fed. Appx. 823 (11th Cir. 2008)
iii Moretta v. Miami-Dade County, 2007 U.S. Dist. LEXIS 21360 (S.D. Fla., Jan. 23, 2007)
iv Morretta, 280 Fed. Appx. at 825
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