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©2010 Jack Ryan, Attorney, Legal & Liability Risk Management Institute (LLRMI.COM) Crowell v. Kirkpatrick, slip opinion No. 09-4100-cv., (2nd Cir. November 15, 2010)
Protestors who had chained themselves to cement filled barrels to defeat the officers’ ability to make an arrest were actively resisting.[i]
Jonathan Crowell and Samantha Kilmurray were two of a group of protestors who began gathering at 1:00 in the afternoon on private property to protest the development of a truck stop in Brattleboro, Vermont. The gathering prompted the response of the Brattleboro Police Department who determined that there were no active plans to develop the property which was the location of the protest and that the owner wanted the protestors removed. After informing the protestors that they were trespassing and that there were no immediate plans to develop the property, the officers gave the protestors one hour to leave.
On July 23rd at approximately 4:00 p.m. Lieutenant Kirkpatrick and Lieutenant Evans responded back to the Putney Road location. The protestors, who had disregarded the order to vacate given earlier in the day showed no inclination to follow the police command to leave the property. At that time, the officers called the property owners who agreed that no action would be taken on the 23rd and that the protestors were to be left on the property overnight. This was relayed to the protestors.
When the officers returned to the property on the July 24th only Jonathan Crowell and Samantha Kilmurray remained. The officers gave verbal commands to the pair ordering them again to vacate the property. Crowell and Kilmurray were told that if they did not vacate the property they would be arrested. The pair still refused to comply with the officers’ verbal commands. A further difficulty was the fact that Crowell and Kilmurray had chained themselves together using a mechanism commonly used by protestors to make their arrest and removal difficult if not impossible. The particular mechanism used by Crowell and Kilmurray was a 55 gallon drum filled with dirt, rebar and cement, with holes punched in each side for a PVC pipe in which a protestor could insert their arm and attach the chain bracelet on their wrist to the rebar across the opening of the internal end of the PVC pipe by use of a carabiner.
At that point the officers on scene took several steps in their effort to take Crowell and Kilmurray into custody. Following the failure of their presence and verbal commands, the officers attempted to move the barrel. Realizing the weight of the barrel as well as the likelihood of injuring Crowell and Kilmurray, it was determined that this option was not viable. The officers dug into the dirt in the barrel and called the Department of Public Works to come to the scene to attempt to dig out the barrel. This failed when it was determined that the dirt went between rebar, cement, and PVC pipe. The officers attempted empty hand control by attempting to pull Crowell and Kilmurray from the barrel. This also failed when the pair began to shout in pain and the officers realized that they achieved no movement by pulling them. While the officers were attempting to free the protestors from the barrel so they could be arrested, one of the protestors began yelling to someone across the street telling that person to notify the rest of the protestors from the previous day so that they would return.
When none of the options attempted by the officers worked, it was decided that the officers would utilize TASERS® in the drive stun mode. Prior to using the TASERS® the officers explained to the protestors what they were going to do and warned that the deployment would hurt. When the two protestors still refused to release themselves from the barrel, two officers, one for each protestor, deployed their TASERS® in the drive-stun mode. The deployments were successful and the protestors released themselves and were arrested. They filed a lawsuit alleging an excessive use of force in violation of their Fourth Amendment rights. The United States District Court for the District of Vermont dismissed the lawsuit finding that the use of the TASERS® by the officers was reasonable. The dismissal prompted an appeal to the United States Court of Appeals for the Second Circuit.
The United States Court of Appeals, in its review observed the following:
“In this case, Plaintiffs were arrested for relatively minor crimes of trespass and resisting arrest and were not threatening the safety of any other person with their behavior. However, they were actively resisting their arrest at the time they were tased by the officers in this case, having chained themselves to a several hundred pound barrel drum and having refused to free themselves, even though they admitted they were able to release themselves from the barrel at any time throughout the encounter. Plaintiff Kilmurray admits that prior to the officers' use of their tasers, she had asked an acquaintance at the scene to call other members of their group to return to the property. Moreover, both Plaintiffs admitted that the officers at the scene considered and attempted several alternate means of removing them from the property before resorting to use of their tasers, that the officers expressly warned them that they would be tased and that it would be painful, and that the officers gave them another opportunity to release themselves from the barrel after this warning. Finally, both Plaintiffs were given opportunities again to release themselves from the barrel prior to the subsequent uses of the tasers.”
The court went to hold:
“While we do not suggest that the use of a taser to effect an arrest is always, or even often, objectively reasonable, under the circumstances here, even construing the facts in the light most favorable to Plaintiffs, we conclude that it was. Because they had chained themselves to the drum, Plaintiffs could not have been arrested and removed from the scene by more conventional means, and the apparently imminent arrival of some number of their compatriots added a degree of urgency to the need to remove Plaintiffs quickly, before the presence of other protestors made that more difficult to accomplish. The officers attempted to use other means to effectuate the arrest, none of which proved feasible, and used the taser only as a last resort, after warning Plaintiffs and giving them a last opportunity to unchain themselves from the barrel and leave the premises peacefully. Finally, Defendants set the taser on "drive stun" mode, which typically causes temporary, if significant, pain and no permanent injury. See Brooks v. City of Seattle, 599 F.3d 1018, 1027 (9th Cir.2010) ("The use of the Taser in drive-stun mode is painful, certainly, but also temporary and localized, without incapacitating muscle contractions or significant lasting injury."), rehearing en banc granted, --- F.3d ----, 2010 WL 3896202 (9th Cir. Sept. 30, 2010). Given the totality of those circumstances, it is difficult to see how a rational fact-finder could conclude that the officers' actions were anything other than reasonable.”
The trial court’s dismissal of the lawsuit was upheld by the Court of Appeals finding that the use of the TASER® in this instance was reasonable.
KEY POINTS (SECOND CIRCUIT):
The protestors’ act of chaining themselves to a several hundred pound barrel and refusing to release themselves which was within their power was found to be active resistance.
The drive-stun mode of the ®TASER was recognized by the court to be a lesser (on the hurt scale) degree of force than deploying the TASER® in the dart mode for neuromuscular disruption.
Although officers are not required to consider lesser alternatives to a particular use of force (except in the 9th Circuit), the fact that the officers tried other alternatives to the TASER® prior to its use was helpful in swaying the court. Obviously under the facts of this case, the officers had time for such deliberation.
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CITATIONS
[i] Crowell v. Kirkpatrick, slip opinion No. 09-4100-cv., (2nd Cir. November 15, 2010).
TASER® (ECD) LEGAL UPDATE ARTICLES
U.S. Court of Appeals, 9th Circuit: TASER® Was Unconstitutional (Graham Analysis) (2011) by Jack Ryan
When Officer Mistakes Firearm for TASER® (2011) by Brian S. Batterton
TASER® Probe Mode, Secondary Impact And Liability (2011) by Jack Ryan
Model Policy - Electronic Control Devices (PDF) by Jack Ryan
Use of TASER® in Drive-Stun Mode on Protestors: Objectively Reasonable in 2nd Circuit (2010) by Jack Ryan
TASER® Case Re-visited in 9th Circuit (2010) by Jack Ryan
TASER® on Non-Compliant Arrestee (2009) by Jack Ryan
TASER® International, Inc. Warns Against Targeting Chest (2009) by Jack Ryan
TASER® & Electronic Compliance / Restraining Devices (2009) by Brian Batterton
11th Circuit Decides Taser® Case Involving Six Year Old (2009) by Brian Batterton
In-Custody Deaths and Excited Delirium (2007) by Jack Ryan
TRAINING:
TASER® (and ECW) Legal Issues & Litigation
RESOURCES:
Checklist for TASER®
laminated 8 1/2 x 11, 2 sided
TRC487: Taser (& ECD's) Legal Update & Best Practices
CD of recorded Webinar, Instructor's PowerPoint® and TASER® Legal Update & Best Practices Manual (Electronic copy).
TRC486: Excited Dilirium Legal Update & Best Practices
CD of recorded Webinar, Instructor's PowerPoint® and Excited Dilirium Legal Update & Best Practices Manual (Electronic & Print copy)
Critical Task Quick-Reference Legal Guide for Law Enforcement Officers & Supervisors
TRC490: Safe Storage of Firearms Legal Update & Best Practices
CD of recorded Webinar, Instructor's PowerPoint®
TRC491: Use of Force, Legal Update & Best Practices
CD of recorded Webinar, Instructor's PowerPoint®, Use of Force manual, 2nd ed. (Print copy)
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