Deputy Rackard asked [Buckley] several times to stand up. [Buckley] did not do so. The deputy then attempted to lift [Buckley] to his feet; but [Buckley] remained limp and did not stand. After repeatedly and plainly warning [Buckley] that a TASER™ [sic] device would be used (to which [Buckley] shouted, “I don’t care anymore — tase me”) and after giving [Buckley] some time to comply, the deputy discharged the TASER™. The TASER™ was used for approximately five seconds in the “stun gun” mode. The deputy applied the ECD’s electrodes directly to [Buckley]’s clothed back and chest. After Deputy Rackard discharged the TASER™, he asked [Buckley] again to stand up; but [Buckley] did not comply. Again, the deputy plainly warned [Buckley] that the TASER™ would be used. [Buckley] still did not stand. After some time, Deputy Rackard discharged the TASER™ for another five-second burst. The TASER™ delivers an electrical shock; it hurts.

At this point, Deputy Rackard walked to his patrol car and, by radio, called for backup. [Buckley] remained on the ground. When the deputy returned, he ordered [Buckley] to get up. Again, Deputy Rackard plainly warned [Buckley] that the TASER™ would be used and allowed [Buckley] time to comply. The deputy then attempted a second time to lift [Buckley] to his feet, but to no avail. [Buckley] still did not stand; and the deputy used the TASER™ a third time. Even though [Buckley] continued to resist moving to the patrol car, Deputy Rackard made no more use of the TASER™.

Once another police officer arrived, [Buckley] promptly relented; and with the assistance of the other officer, Deputy Rackard escorted [Buckley] to the patrol car without incident. [Buckley] suffered sixteen small burn marks on his back from the TASER™ with some scarring (the record does not say whether or not the scars are permanent) and keloid growth around some of the burns.  [Buckley] also claims that he suffered emotional injury from the incident: He says that he now finds it difficult to trust police officers and to ask for their assistance.”

In holding that the officer was entitled to qualified immunity the United States Court of Appeals for the 11th Circuit asserted:

“In the light of the undisputed facts established in the record, we conclude that Defendant’s use of force in this particular situation was not outside the range of reasonable conduct under the Fourth Amendment. Of particular importance are three facts. First, the incident occurred at night on the side of a highway with considerable passing traffic. Second, the deputy could not complete the arrest — that is, truly control Plaintiff — because Plaintiff was resisting. Third, the deputy resorted to using the TASER™ [sic] only after trying to persuade Plaintiff to cease resisting, after attempting to lift Plaintiff, and after repeatedly and plainly warning Plaintiff that a TASER™ would be used and then giving Plaintiff some time to comply.

Although, as the district court observed, the underlying offense of refusing to sign a traffic citation was relatively minor, we nevertheless credit the government with a significant interest in enforcing the law on its own terms, rather than on terms set by the arrestee. The government has an interest in arrests being completed efficiently and without waste of limited resources: police time and energy that may be needed elsewhere at any moment. Even though Plaintiff was handcuffed, he still refused repeatedly to comply with the most minimal of police instructions — that is, to stand up and to walk to the patrol car. That Plaintiff was resisting arrest weighs in the deputy’s favor. In addition, to the extent that the incident occurred beside an active highway at night, we also credit the government’s interest in the safety of Deputy Rackard, Plaintiff, and even passing motorists: a legitimate interest to be advanced by putting Plaintiff in the patrol car. Deputy Rackard warned Plaintiff early on that they should not remain exposed alongside the highway for fear of being hit by a passing vehicle.

Against these important governmental interests weigh the nature and quality of the intrusion on Plaintiff’s Fourth Amendment interests. Plaintiff alleges that he sustained, as a result of Deputy Rackard’s acts, emotional injury as well as sixteen small TASER™ burns, which caused some scarring and keloid growth. Although Plaintiff’s injuries are not insignificant, neither are they severe. Plaintiff points to no evidence in the record that the deputy’s use of the TASER™ caused any second-order physical injuries; nor has Plaintiff pointed to evidence that the burns he did sustain required medical attention. Accordingly, we regard the deputy’s use of the TASER™ in this particular case as — at most — moderate, non-lethal force…Never was Plaintiff fully secured until after the second officer arrived. The district court’s suggestion that Plaintiff had been fully secured because he was handcuffed is mistaken: Plaintiff was not bound at the feet (so, he could both run and kick), he was moving around on the ground alongside a busy road, and he would not comply with the deputy’s repeated instructions to stand up and to move to the patrol car where Plaintiff could be confined. An objectively reasonable police officer could rightly believe that force was therefore necessary to secure the non-compliant Plaintiff in the patrol car and thereby complete the arrest.” (emphasis added)

The Court of Appeals concluded that the trial court should have granted the deputy summary judgment meaning that the officer’s actions did not violate the Constitution at all.  The court went on to hold that even if a constitutional violation had occurred, the deputy would have been entitled to qualified immunity because the law was not clearly established on this type of TASER™ usage.

The most recent case from the United States Court of Appeals for the 11th Circuit, Oliver v. Fiorino, involved an event which resulted in death.i  The Court reported the facts as follows:

“Taking the facts in a light most favorable to the plaintiff, this tragic story began on May 13, 2004, at approximately 3:17 p.m. Officer Fiorino was driving her police cruiser; she said she noticed a man, who later turned out to be Anthony Carl Oliver, Sr. (“Oliver”), standing in an eight to ten-foot-wide grassy median on West Colonial Drive near Tampa Avenue in Orlando, waving his arms and attempting to flag her down. Officer Fiorino turned her police cruiser around and parked in the Eastbound turning lane, blocking the turning lane and stopping any traffic in that lane. According to one bystander, Carl Hughley, the officer pulled up and asked Oliver to approach her vehicle. He complied. Oliver then knocked on the rear driver-side window and unsuccessfully attempted to open the locked rear door of the police cruiser. Fiorino used her loud speaker to instruct Oliver to move to the front of her vehicle; again, he complied. Fiorino then directed Oliver to move further away from the vehicle, which he did. Fiorino then exited her vehicle. At this point, Oliver was standing some twenty-three feet away from Fiorino, who was near her vehicle.

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i Oliver v. Fiorino, 2009 U.S. App. LEXIS 23579 (11th Cir. 2009) (decided October 26, 2009)


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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