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Oliver did not speak before Officer Fiorino pulled out her TASER™ gun and asked Oliver what the problem was. Oliver responded to Fiorino’s questions, saying “they’re shooting at me” several times, and pointing across the street. Fiorino told Oliver to calm down and tell her what was going on. Oliver attempted to walk away; Fiorino asked him to stay and talk. According to Fiorino, Oliver then began to walk quickly toward her. In response, Fiorino raised her TASER™ [sic] gun and told Oliver to step away from her. Oliver complied. Fiorino observed that throughout this encounter, Oliver was “very fidgety.” According to Hughley, however, Oliver never acted in a threatening or belligerent manner toward the officers, nor did he even curse at them.
Officer Fiorino asked Oliver for details about who was shooting at him and under what circumstances. She also called her dispatch to inquire whether there had been any reported shootings in the area. Dispatch told her there had been a shooting reported eight or nine miles away, but none in her area. When Fiorino was advised there had been no shooting in the area, she requested back-up.
Shortly thereafter, Officer David Burk arrived on the scene. Burk parked his car so that it, along with Fiorino’s car, boxed in the left turning lane where the incident was unfolding. When Burk arrived, Oliver was standing several feet from Fiorino in the median, speaking loudly and “moving his hands around.” Fiorino and Burk testified that they considered taking Oliver into custody under Florida’s Mental Health Act, Fla. Stat. § 394-463(1) (“the Baker Act”), because he appeared to them to be mentally unstable. Nonetheless, Fiorino and Burk never informed Oliver of this fact, and never attempted to either arrest Oliver or “Baker Act” Oliver at any time during the entire incident.
Officer Burk approached Oliver, who was still standing in the median, to ask him for his name and identification. Oliver complied, giving Burk his identification card. Burk then decided to coax Oliver across the Eastbound side of the street (across the blocked turning lane and the other lanes) to the sidewalk, so that they could talk when he saw there was “no traffic at all,” and once the light turned red. Burk attempted to do so by putting his right hand on Oliver’s left shoulder. Oliver responded by trying to back away. Oliver then “momentarily stopped” in the blocked turning lane of the street and began to babble incoherently. When the light changed and the traffic (if any) in the other lanes began to move again, Burk tried to force Oliver across the street, but Oliver struggled and pulled away from him.
During the encounter, Burk held on to Oliver’s shirt as Oliver attempted to walk away across the street. At this point, Oliver did not try to grab Burk or to swing at him. Fiorino nevertheless, and without warning, tased [sic] Oliver for the first time.
Fiorino was using a TASER™ M26 Electronic 10 Control Device, which was “designed to cause significant, uncontrollable muscle contractions capable of incapacitating even the most focused and aggressive combatants.” [Doc. 143-8 at 28]. “The [T]aser gun fires two probes up to a distance of twenty-one feet from a replaceable cartridge. These probes are connected to the [T]aser gun by high-voltage insulated wire. When the probes make contact with the target, the [T]aser gun transmits electrical pulses along the wires and into the body of the target, through up to two inches of clothing.” Draper v. Reynolds, 369 F.3d 1270, 1273 n.3 (11th Cir. 2004). The pulses are five seconds in duration, unless the trigger is held down longer than five seconds. [Doc. 142-43 at 70]. “Each 5-second cycle is a ‘window of opportunity’ for the arrest team to apprehend the subject and go hands on.” Id. at 73.
The TASER™ prongs from Officer Fiorino’s first tase hit Oliver in his abdomen. According to Carl Hughley, this tase brought Oliver to the ground. While the TASER™ cycled through its five-second shock, Burk tried neither to handcuff Oliver nor to move him. This is so, despite the fact that, according to Hughley, once Oliver was on the pavement after the first tase, he never got back up, and he never hit, kicked, punched, or threatened the officers. Three to four seconds after the first TASER™ cycle ended, Fiorino tased Oliver once again. Ten seconds after the end of the second cycle, she tased Oliver still again for the third time.
After Oliver was shocked by the TASER™, according to Hughley, Oliver was lying on the scorching hot asphalt screaming in pain that it was “too hot.” Another bystander, Richandra Nelson, said that Oliver remained on the ground while Burk just stood there and watched Fiorino tase him. Both Nelson and Hughley witnessed Oliver attempting to get up from the ground, but said that they never saw him struggling with, hit, kick, punch, or threaten Burk in any manner. Hughley stated that when Oliver went down, he couldn’t roll over. When he tried to sit up, he flopped down like a “wet cloth” because he had no control over his body.
After approximately the third or fourth tase, (sic) one of the TASER™ wires became disconnected from the TASER™ prong and stuck into Oliver’s chest. Fiorino loaded a second cartridge into her TASER™ and began tasing Oliver again. This tase and the next three or four tase cycles caused Oliver to be totally immobilized, leaving him clenched up and lying on his back. After the sixth or seventh tase, Oliver was again seen lying on the hot asphalt. Officer Fiorino said that when she tased Oliver for the last time (the eighth recorded tase), he was lying flat and he did not get up.
Fiorino said she was not sure how many times she tased Oliver, but that she just kept pulling the trigger until he stayed on the ground. She said that she believed she tased Oliver approximately eleven or twelve times. Fiorino’s TASER™ log shows that she tased Oliver a total of eight times over a two-minute period as follows: (note that each tase lasts five seconds) 1) Tase at 14:18:19 (2:18:19 p.m.);2) Tase at 14:18:28 (2:18:28 p.m.); 3) Tase at 14:18:43 (2:18:43 p.m.); 4) Tase at 14:19:08 (2:19:08 p.m.); 5) Tase at 14:19:21 (2:19:21 p.m.); 6) Tase at 14:19:31 (2:19:31 p.m.); 7) Tase at 14:19:38 (2:19:38 p.m.); and 8) Tase at 14:20:27 (2:20:27 p.m.).
Nelson observed that once backup arrived at 3:24 p.m., the officers finally handcuffed Oliver. Fiorino stated that after Oliver was handcuffed, he began foaming at the mouth. It appeared as if Oliver’s body had gone limp, but he still screamed in pain. After Officer Burk walked Oliver back to the median, Fiorino took some of the TASER™ prongs out of his body, but was unable to remove them all.
At 3:35 p.m., paramedics arrived on the scene. At that point, Oliver was handcuffed and seated on the median, awake but not talking. After Oliver was placed on a stretcher, Burk noticed that Oliver had blood in his mouth. As Oliver was placed in the ambulance, he sat straight up and began to have a seizure. His health deteriorated rapidly; his body temperature was measured at 107 degrees. Oliver was pronounced dead on June 1, 2004, at Florida Hospital.
An autopsy revealed that Oliver had low levels of cocaine in his system, but Dr. Rudner, Plaintiff’s expert witness and forensic pathologist opined “to a reasonable degree of medical certainty” that Oliver died as a result of “ventricular dysrhythmia in conjunction with Rhabdomyolisis” as a result of “being struck by a TASER™.”
It should be recognized that this case was being reviewed on summary judgment grounds; therefore the court was looking at the facts in the light most favorable to the plaintiff. The denial of summary judgment and qualified immunity means that the case must now proceed to trial where a jury will decide any disputed issues. A disputed issue at trial in this case is likely to be the actual cause of death. It seems undisputed that Smith’s body temperature was 107 degrees; however the plaintiff appears to have asserted that this was the result of the TASER™ deployment and the hot asphalt rather than a pre-existing condition.
In its consideration of the officers’ appeal of the trial court’s decision denying the officers summary judgment and qualified immunity, the United States Court of Appeals for the 11th Circuit first reviewed whether, under these facts, a constitutional violation had occurred. The court asserted:
“In Draper v. Reynolds, we addressed the use of a TASER™ shock in the course of an arrest. In that case, we concluded that where the police had used a single TASER™ shock against a “hostile, belligerent, and uncooperative” suspect, not causing any serious injury and leaving the suspect “coherent” and “calmed” shortly after the shock, the force used was proportionate and reasonable. We observed that under the facts of the case, “the single use of the [T]aser [sic] gun may well have prevented a physical struggle and serious harm to either [the suspect] or [the officer],” and, therefore, “[u]nder the ‘totality of the circumstances,’ [the officer’s] use of the [T]aser gun did not constitute excessive force.”
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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)
