©2012 Jack Ryan, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
In Brown v. Cwynar [i], the United States Court of Appeals for the 3rd Circuit reviewed a case involving the use of a TASER™ in the drive-stun mode, on a seventy-three year old man in order to get his hands behind his back for handcuffing.
Mr. Brown had been at the Pearle Vision Center for an eye examination when he got into an argument over his health insurance’s twenty-five dollar co-pay. When he refused to pay, he was told that he would not be given his prescription until payment was made. He told the manager that he only wanted the prescription so he could get a price on new glasses. The manager assigned an employee to assist him with looking at new glasses. The situation escalated when Mr. Brown allegedly threatened to spit in the face of an employee who was showing him glassed and attempting to quote him a price. This prompted a call to law enforcement for a disruptive customer in the store.
The first officer to pull up was Officer Cwynar of the Shenango Township Police. Brown had left the store and was walking to his car when store employees pointed him out to Officer Cwynar. Officer Cwynar approached Mr. Brown and attempted to speak with him. Brown refused and tried to get in his car and drive off. Officer Cwynar initially asked Brown for the keys and informed him he was not free to leave. When Brown reached for the gear shift Officer Cwynar pushed Brown over on the front seat and began struggling with Mr. Brown who was resisting. After giving Mr. Brown a warning, Officer Cwynar deployed his TASER™ twice to Mr. Brown’s tricep but was still unable to control him or get the keys from him. The TASER™ deployments were unsuccessful in controlling Mr. Brown or getting the keys from him.
Trooper Phillips, who had responded to Cwynar’s call for backup observed Brown thrashing and kicking as he pulled up. The trooper attempted to pull the keys from Brown’s hands but was also unsuccessful. He also tried to pull Brown from the car. Officer Cuscino of the New Castle Police Department also responded to the call for assistance. The court described the facts and observations of Officer Cuscino as follows:
Officer Cuscino possessed the following knowledge at the time he fired the TASER™ : (1) he had been informed by two dispatch calls that a police officer was in need of assistance at Lawrence Village Plaza and was fighting with someone; (2) when he arrived, he personally observed Brown scuffling with police officers in a car; (3) he was informed by Officer Cwynar that Brown had already been tased but continued to act uncooperatively; and (4) he observed Brown lying on the ground and refusing to release his hands from beneath his body. Together, this information supplied Officer Cuscino a reasonable basis to conclude that Brown would continue to resist arrest and to act belligerently towards the police were he not subdued. Moreover, Officer Cuscino personally warned Brown he would be tased if he did not release his hands, and Brown was undeterred.
Officer Cuscino deployed his TASER™ in the drive-stun mode to Brown’s upper back. This caused Brown to release his hands allowing the officers to handcuff him. The 3rd Circuit only considered the actions of Officer Cuscino because Officer Cwynar had been dismissed as a result of a settlement agreement which occurred prior to this appeal.
The court held that Officer Cuscino’s use of the TASER™ was objectively reasonable. The court noted the officer’s knowledge and observations prior to deployment and concluded that the degree of force used, a TASER™ deployment to the upper back in the drive-stun mode, was proportional to the threat perceived by the officer.
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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.
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CITATIONS:
[i] Brown v. Cwynar, 2012 U.S. App. LEXIS 11466 (3rd Cir. June 7, 2012).
TASER® (ECD) LEGAL UPDATE ARTICLES
Ninth Circuit Affirms Summary Judgement in Favor of Officers in TASER® Case (2012) Brian S. Batterton
Taser™ Used to Subdue Non-Compliant 73 Year Old (2012) by Jack Ryan
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:
RESOURCES:
Checklist for TASER®
laminated 8 1/2 x 11, 2 sidedTRC487: 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)
