On February 1, 2013, the Fourth Circuit Court of Appeals decided Myers v. Baltimore County, Maryland [i], in which the court defined some boundaries regarding the reasonable use of a TASER. The facts of Myers taken directly from the case are as follows:
Ryan Meyers was forty years old at the time of his death. He had been diagnosed with bipolar disorder at the age of fifteen, and struggled with this mental illness throughout his adulthood. He “dropped out” of school after the ninth grade, and lived with his parents his entire life. Prior to the events at issue, the Meyers family had contacted law enforcement authorities on five occasions to have Ryan forcibly detained and transported to a mental health facility for psychiatric evaluation, including three times during the previous ten years.
On the evening of March 16, 2007, Mrs. Meyers placed a telephone call to a “911 operator” to report that Ryan and his brother, William Meyers, Jr. (Billy), were engaged in a fight. When the 911 operator attempted to obtain additional information from Mrs. Meyers, she did not respond. However, the 911 operator heard “screaming in [the] background.” Based on this telephone call, officers from the Baltimore County Police Department (the Department) were dispatched to the Meyers’ residence (the residence).
Officer Vincent Romeo was the first officer to arrive at the residence, where he found Mr. Meyers and Billy in the front yard. Mr. Meyers was holding a towel against his face to cover a laceration on his nose, which also was swollen. Mr. Meyers informed Officer Romeo that Ryan was inside the home, and that Mrs. Meyers had fled and would not return until the police had removed Ryan from the premises. From his vantage point on the porch of the residence, Officer Romeo could see that Ryan was pacing inside the house carrying a baseball bat.
Before attempting to enter the residence, Officer Romeo spoke with Billy about the events that had occurred. Billy stated that when he arrived at the house that evening, he heard his mother exclaim, “Stop, Ryan. You are hurting me.” Billy responded by punching Ryan, and a fistfight ensued, causing Mrs. Meyers to contact the police. Billy also told Officer Romeo that Ryan “has problems upstairs and he’s bipolar.”
Officer Karen Gaedke later arrived at the residence in response to Officer Romeo’s request for additional assistance. Officer Gaedke was familiar with Ryan’s mental illness, having recently arrested him due to an incident at a nearby convenience store. After Officer Gaedke arrived at the residence, she and Officer Romeo began speaking with Ryan to convince him to surrender peacefully, but he rebuffed their efforts, stating, “No, you’re going to kill me.”
Officer Romeo concluded that Ryan would not voluntarily leave the residence, that he was in an “agitated state,” and that he posed a threat to the officers’ safety because he was carrying a baseball bat. Accordingly, Officer Romeo contacted a police dispatcher, asking that an officer trained to use a taser be sent to the residence.
Officer Stephen Mee, who was authorized by the Department to use a taser, responded to Officer Romeo’s request. Upon arriving at the residence, Officer Mee unsuccessfully engaged in a dialogue with Ryan in an attempt to have him surrender voluntarily. Thereafter, Officer Mee, Officer Romeo, Officer Gaedke, and Officer Andrew Callahan, IV, who also had responded to the scene, (collectively, the officers) gained access to the home by using a key provided by Billy. Billy entered the home at the same time and was a witness to the events described below.
Upon entry, Officer Mee ordered Ryan to drop the baseball bat. According to Billy, Officer Mee deployed his taser almost immediately after ordering Ryan to drop the bat, without giving Ryan time to comply with the officer’s command. However, it is undisputed that Ryan was holding the bat when he first was struck by the taser’s probe, and that Ryan may have taken a step toward the officers immediately before the probe made contact with his body.
During Officer Mee’s first three deployments of the taser, the device was in “probe mode,” during which two probes attached to thin electrical wires were fired from the taser, causing an electric shock to be delivered to Ryan upon contact. The first taser probe fired by Officer Mee struck Ryan on his upper body, registering a shock of about 60,000 volts that lasted five seconds. Ryan, who was about six feet in height and weighed about 260 pounds, did not drop his bat or fall to the floor in response to the first taser shock. Officer Mee stated that, after the first taser shock, Ryan was still holding the baseball bat and took two more steps toward the officers. According to Billy, however, Ryan went into convulsions and exclaimed, “I give up. I give up. Stop. Stop. I give up.”
Officer Mee again directed his taser in probe mode at Ryan, resulting in an additional 60,000-volt shock that lasted five seconds. This second taser shock caused Ryan to drop his bat, but he remained standing and again advanced toward the officers. Officer Mee directed his taser at Ryan a third time, delivering another 60,000-volt shock that lasted five seconds and caused Ryan to fall to the ground.
After Ryan fell, Officer Mee, Officer Callahan, and one other officer sat on Ryan’s back. While the other officers remained seated on Ryan’s back, Officer Mee fired his taser a fourth time in probe mode.4 Officer Mee thereafter changed the taser’s mode from “probe mode” to “stun mode” and, during a period slightly exceeding one minute, delivered six additional taser shocks to Ryan, which each lasted between two and four seconds.
After Officer Mee’s tenth use of the taser on Ryan, the officers observed that Ryan appeared to be unconscious. Thereafter, an ambulance, which had been requested after Officer Mee first used the taser, arrived at the residence. The responding paramedics found Ryan in a state of cardiac arrest, and they were unable to revive him. [ii]
Regarding Ryan’s conduct during the fourth through tenth use of the TASER, there was conflicting testimony. A description of the conflict, taken from the case, is as follows:
The parties gave conflicting accounts regarding Ryan’s actions during Officer Mee’s use of his taser for the fourth through the tenth times (the seven additional taser shocks). According to some of the officers, Ryan was actively resisting the officers’ efforts to place him in handcuffs. These officers testified that Ryan was able to regain control of the baseball bat while he was on the ground, and tried to bite the officers when he again lost control of the bat. These officers further testified that Ryan stated loudly during the struggle, “I want to die, I want to die,” and “[j]ust kill me cause I’m going to kill you.”
Officer Gaedke, however, provided a different version of the events that occurred after Ryan fell to the floor. She testified in her deposition that after Ryan fell, officers were sitting on Ryan’s “[u]pper body, lower body, [and] middle body.” She further stated that during this time, instead of screaming at the officers and attempting to bite them, Ryan said nothing and was “[s]tiffening up and keeping his body rigid and keeping his hands underneath of his body.”
Billy’s testimony concerning the extent of Ryan’s resistance also conflicted with the testimony provided by the male officers. Billy testified that after Ryan fell to the floor, he merely tried to move his legs while the officers sat on his back. [iii]
The Myers’ filed suit against the officers and the county under 42 U.S.C. § 1983 for violating Ryan’s right to be free from excessive force under the Fourth Amendment. The court split the case, first hearing motions regarding the liability of the officers. It is important to note that at this stage of a case during motions for summary judgment and qualified immunity, the court is required to view the facts in a light most favorable to the plaintiff. Thus, at this stage, any conflicting testimony is weighed in favor of the plaintiff’s version of events. Later, if immunity is denied, it will be up to a jury to determine whose version of events is most credible.
The district court, held that the officer that used the TASER was reasonable in administering the first three shocks but the fourth through tenth shock were a violation of the Fourth Amendment and unconstitutional. However, the district court held that that the law was not clearly established; therefore the officers were entitled to qualified immunity. The plaintiff’s appealed to the Fourth Circuit Court of Appeals.
At the outset, the Fourth Circuit held that the officers had probable cause to arrest Ryan and they were let into the house by a key provided by Billy; therefore, it was not a Fourth Amendment violation for them to enter the residence to arrest Ryan.
Next, the court noted that qualified immunity was appropriate for officers Romeo and Gaedke, as they are not responsible for the manner in which Officer Mee used his TASER.
Thus, the issue before the court was whether Officer Mee was reasonable under the Fourth Amendment in the manner in which he used his TASER on Ryan during the course of the lawful arrest.
Regarding the first three TASER applications, the Fourth Circuit stated:
We conclude that Officer Mee’s first three deployments of his taser did not amount to an unreasonable or excessive use of force. During the period that Officer Mee administered the first three taser shocks, Ryan was acting erratically, was holding a baseball bat that he did not relinquish until after he received the second shock, and was advancing toward the officers until the third shock caused him to fall to the ground. Under these circumstances, Ryan posed an immediate threat to the officers’ safety, and was actively resisting arrest. See id. As aptly stated by the district court, “Officer Mee was faced with the task of subduing an armed, agitated, physically imposing suspect in the confined space of a living room without risking his own safety or that of his fellow officers.” Accordingly, we conclude that Officer Mee’s first three uses of the taser were objectively reasonable and did not violate Ryan’s Fourth Amendmentrights. [iv] [internal citations omitted]
Regarding the fourth through tenth application of the TASER, the court first noted that:
We also have stated in forthright terms that “officers using unnecessary, gratuitous, and disproportionate force to seize a secured, unarmed citizen, do not act in an objectively reasonable manner and, thus, are not entitled to qualified immunity.” Bailey v. Kennedy, 349 F.3d 731, 744-45 (4th Cir. 2003). [v]
Applying the rule above to the facts viewed most favorably to the plaintiff, the court observed that at the time of the fourth through tenth TASER shocks, Ryan was unarmed and “effectively secured with several officers sitting on his back.” [vi] In light of this, the court held:
In such circumstances, the seven additional taser shocks administered by Officer Mee were clearly “unnecessary, gratuitous, and disproportionate.” See Bailey, 349 F.3d at 744-45. Thus, based on the present record, because Ryan did not pose a threat to the officers’ safety and was not actively resisting arrest, a reasonable officer in Officer Mee’s position would have understood that his delivery of some, if not all, of the seven additional taser shocks violated Ryan’s Fourth Amendment right to be free from the use of excessive and unreasonable force. [vii] [emphasis added]
Thus, the court held the officer acted in violation of the Fourth Amendment with the fourth through tenth TASER shocks. Further, the court held that the law was clearly established such that a reasonable officer in Officer Mee’s position would have known he was violating the constitution; therefore, he was not entitled to qualified immunity.
The Bottom Line
It is unconstitutional to use a TASER on a suspect that is unarmed, effectively secured with several officers on his back, and who is not a threat to officers or others, and not actively resisting arrest.
Uses of force are governed under the objective reasonableness standard of Graham v. Connor. [viii] In Graham, the United States Supreme Court stated that there are three factors that should be considered when determining if an officer’s use of force was reasonable under the Fourth Amendment. The three factors are as follows:
The severity of the crime at issue;
Whether the suspect posed a threat to the officer or others; and
Whether the suspect was actively resisting arrest or attempting to evade arrest by flight.
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.
[i] No. 11-2192, 2013 U.S. App. LEXIS 2282 (4th Cir. Decided February 1, 2013)
[ii] Id. at 3-9
[iii] Id. at 9-10
[iv] Id. at 20-21
[v] Id. at 25-26
[vi] Id. at 26
[vii] Id. at 26-27
[viii] 490 U.S. 386 (1989)