Officers are often faced with situations where a person is non-compliant and refuses to follow lawful orders. Officers are faced with making decisions on what type of force to use in these situations, and guidance from the caselaw always notes that use of force cases are very dependent on the specific facts of the case at issue. In 2022, the Fifth Circuit Court of Appeals decided Betts v. Brennan[i], which is instructive regarding the use of a conducted energy weapon (CEW), which, in this case, was a Taser. The facts of Betts, taken directly from the case, are as follows:
Early in the afternoon of November 23, 2018, Officer Brennan stopped Betts for speeding. Brennan exited his cruiser and asked Betts to exit his truck. Initially, Betts complied. Once Betts was outside the truck, Brennan explained he had stopped Betts for going thirteen miles per hour over the speed limit. Betts immediately disagreed, arguing there was “no way” he was going that fast. After a short exchange, Betts sat back down in the driver’s seat of the truck. Although continuing to maintain he had not been speeding, Betts remarked: “That’s fine, I ain’t going to argue with you.” Brennan asked Betts for his license, insurance, and registration while Betts sat in the truck, angled toward Brennan.
Betts, continuing to argue about the stop, handed the documents to Brennan. Brennan then stepped away from the truck, creating distance between himself and Betts, and asked Betts to stand at the back of the truck. Betts refused, saying: “I’m fine . . . I’m not causing you no threat . . . .” Brennan moved slightly closer and, over Betts’s protests, told him to “go walk to the back of the truck or I’m going to make you walk to the back of the truck.” Betts replied that Brennan had no reason or authority to order him to do that. This exchange continued for several seconds, with Brennan repeatedly commanding Betts to walk to the back of the truck and Betts refusing. Betts then told Brennan: “I’m not disobeying . . . I’m not causing you no threat. I’ve done this before.” Brennan responded by stating: “For my safety and your safety, I’m asking you to step to the back of the truck.”
Betts began shouting that Brennan was lying. Brennan disagreed. Amid this verbal struggle, Betts told him: “If you tase me, I’m going to sue you.” Betts repeated he was “not being aggressive” and “not even reaching for [his] phone.” As the argument continued, Brennan leaned closer to the truck and grasped Betts’s arm while again ordering him to exit. Betts jerked his arm away and told Brennan not to touch him. He again stated he did not have to exit the truck and claimed Brennan was becoming aggressive. At the same time, Betts slung one foot out of the vehicle. Brennan again tried to approach Betts, and Betts kicked his foot out, stood up to exit, and clenched his fist. While doing so, Betts told Brennan he “might want to call [his] people.”
Again stepping away from the truck, Brennan shouted to Betts to turn around and put his hands behind his back. Betts stood near the driver’s compartment at a 45-degree angle away from Brennan with his hands raised over his head. Brennan repeatedly ordered Betts to put his hands behind his back, and after several commands Betts did so. Brennan then repeatedly told Betts to turn and face him. Betts did not do so but instead kept his body at an angle. Brennan repeated this command several more times, warning Betts that he would tase him if Betts did not comply. When Betts did not comply, Brennan deployed his taser, hitting Betts in the upper leg.
Betts screamed and fell to the ground. Brennan ordered Betts to turn over on his stomach, and Betts complied. Brennan then handcuffed Betts, warning that if he continued to resist Brennan would tase him again. As Brennan handcuffed Betts and sat him up, Betts began shouting profanities: “You just damn shot me for fucking nothing . . . you owe me, you fucked up . . . I’m getting something out of this . . . .” The entire encounter—from the initial stop to Betts’s arrest—lasted about four minutes. Betts later pled guilty to resisting arrest.[ii]
Betts sued Trooper Brennan and the Louisiana State Police for federal and state law claims. We will only discuss the federal claim, which was excessive force in violation of the Fourth Amendment. Trooper Brennan filed a motion for summary judgment based on qualified immunity. The district court denied his motion because, according to the district court, the offense was minor, Betts posed little threat, and was, “at most, passively resisting.” Trooper Brennan appealed to the Fifth Circuit Court of Appeals.
The court of appeals first discussed qualified immunity and stated
An officer merits qualified immunity unless (1) he “violated a statutory or constitutional right of the plaintiff” and (2) “the right was clearly established at the time of the violation.” Dyer v. Houston, 964 F.3d 374, 380 (5th Cir. 2020)[iii]
For a right to be “clearly established,” it must be sufficiently clear such that every reasonable officer in the same situation would have known he was violating the Constitution.
The court of appeals then examined the legal principles relevant in evaluating whether a use of force is reasonable under the Fourth Amendment. The court stated
Our vantage point is “the perspective of a reasonable officer on the scene, rather than . . . the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. Various factors guide the analysis, including “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Ibid. Additionally, we consider “the relationship between the need [for force] and the amount of force used.” Joseph, 981 F.3d at 332 (cleaned up) (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)). Facing an uncooperative arrestee, officers properly use “measured and ascending actions that correspond to [the arrestee’s] escalating verbal and physical resistance.” Id. at 332-33 (quoting Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012)) (cleaned up).[iv]
The court of appeals started their analysis of Betts’s case by examining the three factors from Graham v. Connor, which are (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the officers or other, and (3) whether the suspect actively resisted or attempted to evade arrest by flight.
The court noted that, in this case, “the extent of Betts’s resistance is the most important” factor in analyzing whether it was reasonable to use the Taser. The court also noted that Betts’s crime, a traffic violation, was minor, and since the officer was alone and Betts was confrontational, he posed “some threat to the officer’s safety.
The court then set out to examine Betts’s level of resistance. Betts alleged that he was “at most, passively resisting” at the time he was Tased. The court of appeals stated
[W]e “have paid particular attention to whether officers faced active resistance when they resorted to a taser.” Cloud, 993 F.3d at 384. But the line between active and passive resistance is sometimes hazy and must be judged in light of the “necessarily fact-intensive” nature of the inquiry. Deville, 567 F.3d at 167.[v]
The court of appeals then cited, by way of examples, various cases regarding use of a Taser and the outcome. The court stated
For instance, we have found tasing excessive when an arrestee “did no more than pull his arm out of the officer’s grasp.” Cloud, 993 F.3d at 385 (citing Ramirez, 716 F.3d at 372, 378; Trammell v. Fruge, 868 F.3d 332, 341-42 (5th Cir. 2017)). We have also said “officers could not tase someone who had not committed a crime, attempted flight, or disobeyed any commands, and who may have only provoked police with an ‘off-color joke.’” Ibid. (citing Newman v. Guedry, 703 F.3d 757, 762-63 (5th Cir. 2012)). On the other hand, we have found tasing not excessive where a suspect “resists arrest or fails to follow police orders” or “resist[s]” an officer’s attempt to handcuff him. Ibid. (citing Buchanan v. Gulfport Police Dep’t, 530 F. App’x 307, 314 (5th Cir. 2013) (per curiam); Collier v. Montgomery, 569 F.3d 214, 219 (5th Cir. 2009)). And we have relied on another circuit’s decision finding tasing justified when an arrestee “‘used profanity, moved around and paced in agitation, and repeatedly yelled at [an officer]’ while refusing a series of verbal commands.” Id. at 385 n.6 (alteration in original) (quoting Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004)).[vi]
The court of appeals then stated that they disagreed with the district court’s opinion that Betts only offered “passive resistance” to Trooper Brennan. This was based upon several relevant facts that were observable on video. The facts were as follows: (1) Betts was initially confrontational with the trooper and became increasingly so as the incident progressed; (2) Betts repeatedly contested the reason that he was stopped (speeding); (3) Betts ignored “dozens” of Brennan’s commands to walk to the rear of his vehicle; (4) Betts disputed the officer’s authority to require him to exit his vehicle; (5) Betts accused the officer of lying; (6) Betts batted the trooper’s hand away when the trooper tried to escort him out of the car; (7) Betts dared the trooper to Tase him; and (8) Betts warned the trooper to call back-up. The court considered the most significant factor to be the fact that Betts refused to exit and walk to the rear of his vehicle, because weapons can be hidden in a vehicle. Trooper Brennan explained that it was for his safety and Betts’s safety, and Betts accused the trooper of lying. Thus, the court concluded this was more than mere passive resistance.
The court also examined other factors that supported the reasonableness of the use of the Taser. First, the court of appeals noted that the trooper first tried to use verbal requests and commands and even tried to grab Betts’s arm to escort him from the vehicle, rather than immediately resorting to the use of the Taser. The court stated
[Trooper Brennan] did not tase as a first resort. That is, he did not “immediately resort[] to [the taser] . . . without attempting to use physical skill, negotiation, or even commands.” Newman, 703 F.3d at 763; see also Trammell, 868 F.3d at 342 (“This Court has several times found that the speed with which an officer resorts to force is relevant in determining whether that force was excessive to the need.”). To the contrary, Brennan “properly use[d] ‘measured and ascending actions that correspond[ed] to [Betts’s] escalating verbal and physical resistance.'” Cloud, 993 F.3d at 384 (quoting Joseph, 981 F.3d at 332-33). Brennan tried to get Betts to stand behind the truck by invitation, explanation, command, and even by grasping his arm. And Brennan warned Betts more than once that he would be tased if he did not comply with his orders. Only when all those lesser options appeared to have failed did Brennan use his taser.[vii]
Second, Trooper Brennan tased Betts only once. After the first cycle of the Taser, Betts ceased resisting and complied with handcuffing; thus, further force was not necessary and was not used. The court stated that this showed “a reasonable relationship between the need for force and the amount of force used,” noting that force that is “reasonable at one moment can become unreasonable in the next if the justification for the use of force has ceased.”[viii]
The court of appeals then held that Trooper “Brennan did not violate the Fourth Amendment by tasing Betts one time in order to arrest him.”[ix] Therefore, the plaintiff failed to establish a constitutional violation, which is necessary for him to defeat the officer’s qualified immunity.
The court of appeals also set out to examine the second prong of the qualified immunity analysis, particularly whether the law was clearly established. The court stated
[A] right is ‘clearly established’ only if it ‘is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'” Cunningham v. Castloo, 983 F.3d 185, 191 (5th Cir. 2020) (quoting Mullenix v. Luna, 577 U.S. 7, 11, 136 S. Ct. 305, 193 L. Ed. 2d 255 (2015)).[x]
Betts argued that another Fifth Circuit case, Hanks v. Rogers,[xi] clearly established that the trooper violated his rights under the Fourth Amendment. The court of appeals described the facts of Hanks as follows:
[A]n officer stopped Hanks and ordered him to exit his vehicle. 853 F.3d at 741. After arguing for about a minute, Hanks eventually complied with the officer’s orders to walk behind the vehicle, place his hands on the trunk, and put his hands behind his head. Id. at 742. Standing behind Hanks with taser drawn, the officer then ordered Hanks to “go to [his] knees.” Ibid. Hanks responded “for what?” and asked whether he was under arrest, but the officer only repeated his command. Ibid. Hanks then “made a small lateral step with his left foot,” his hands remaining behind his back. Ibid. The officer suddenly “rushed towards Hanks and administered a blow to Hanks’s upper back or neck,” knocking him onto the trunk and to the ground. Id. at 743. Hanks was then handcuffed and issued a traffic ticket. Ibid. A police investigation later determined that Hanks was “compliant,” that the officer failed to communicate whether Hanks was under arrest, and that the blow to Hanks’s back was “not objectively reasonable . . . based on [Hanks’s] lack of resistance.”[xii]
In Hanks, the Fifth Circuit denied the officer qualified immunity because “suddenly resorting to physical force was clearly excessive and clearly unreasonable” in this situation, given Hanks’s passive resistance by refusing to kneel for twenty seconds after being told to kneel. The court of appeals also noted that Hanks’s “small, lateral step” was not accompanied by signs of flight of violence, in that he didn’t turn his body as if to flee or move his hands, which were folded behind his back. Thus, in Hanks, the Fifth Circuit held
[W]e found it clearly established law that an officer cannot “abruptly resort[] to overwhelming physical force rather than continuing verbal negotiations with an individual who poses no immediate threat or flight risk, who engages in, at most, passive resistance, and whom the officer stopped for a minor traffic violation.” Id. at 747.[xiii]
The court of appeals then compared and contrasted the facts of Betts’s case from Hanks. First, although Hanks initially refused to walk to the rear of his vehicle, he eventually did so; Betts did not. Second, Hanks offered no physical resistance; Betts batted the troopers’ hand away and stated, “Don’t touch me.” Third, Hanks asked the officer some questions, such as if he was under arrest; Betts argued with the trooper, called him a liar, dared him to use his Taser, and warned the trooper he should call for backup. Fourth, Hanks was “blindsided” by an “abrupt blow to his back;” Betts was repeatedly warned he would be tased and was only tased after he refused to comply with numerous orders. Fifth, a police investigation determined that Hanks was “compliant;” Betts was seen on video being repeatedly non-compliant, he “was tased and not struck,” and he ultimately pled guilty to resisting arrest.
Thus, the court of appeals held that Hanks did not clearly establish that Brennan was unreasonable in his use of the Taser against Betts.
Therefore, the court of appeals reversed the decision of the district court and remanded the case so the court could grant qualified immunity to Trooper Brennan.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
_________________________________
Citations
[i] 22 F.4th 577 (5th Cir. 2022)
[ii] Id. at 580-581
[iii] Id. at 582 (emphasis added)
[iv] Id. (emphasis added)
[v] Id. at 583 (emphasis added)
[vi] Id. (emphasis added)
[vii] Id. at 583-584 (emphasis added)
[viii] Id. at 584
[ix] Id.
[x] Id. (emphasis added)
[xi] 853 F.3d 738 (5th Cir. 2017)
[xii] Betts, 22 F.4th at 585
[xiii] Id. (emphasis added)
