On April 24, 2020, the Eighth Circuit Court of Appeals decided Franklin v. Franklin County et al.[i], which serves as an excellent review of the law related to excessive force and the use of Tasers. The relevant facts of Franklin, taken directly from the case, are as follows:
The sheriff’s office in Franklin County, Arkansas, received a call one evening that a suspicious person, later identified as Franklin, was walking along a road and in driveways acting bizarrely and “swinging a stick like a sword.” A sheriff’s deputy found Franklin and spoke with him, and when Franklin made inconsistent statements about his criminal history and his reasons for being in a ditch, the deputy arrested him and took him to the county jail. Franklin called his girlfriend and explained that, if he were held there overnight, it would “take them three fucking dart guns, at least” to control him.
A few hours later, Deputy Nicholas James decided to move Franklin from the general population pod to an isolation cell because Franklin was fighting with inmates and appeared to be under the influence of drugs. An impasse ensued when James opened the door to the pod and asked Franklin to go with him. Franklin refused, dropped into a combative stance, and challenged James, who declined the invitation to fight. Franklin then proceeded to throw things at James and tried to pull him into the cell. Officer Nathan Griffith of the Ozark Police Department, who had arrived to help move Franklin, wrestled Franklin to the floor after a struggle, but Franklin kicked Griffith off and stood up. When Griffith shot Franklin with his taser, Franklin fell to the floor again. Despite commands to the contrary, Franklin began to stand, so Griffith tased him yet another time. It is possible that Griffith may have tased Franklin three more times, but even if he did it had no effect on Franklin. When Franklin started toward them again, the officers finally managed to get Franklin to the ground, handcuff him, and move him to the isolation cell.
Around this time, Sergeant Joseph Griffith of the Ozark Police Department arrived to assist James and Nathan (since two Griffiths are involved now, we will refer to them individually by their first names to avoid confusion and together as “the Griffiths”). The officers tried to remove Franklin’s handcuffs: With Franklin lying face down on the ground, the three officers used their weight to subdue him, but he continued to struggle, so Joseph warned Franklin that he would use the taser if Franklin kept resisting. Because Franklin continued to resist, Joseph tased him on drive-stun mode two or three more times until Franklin stopped fighting and relaxed his arms, allowing the officers to remove his handcuffs. After a few minutes, the officers called for an ambulance, and Franklin was transported to a local hospital. He was pronounced dead a short time later. The medical examiner opined that the cause of death was “methamphetamine intoxication, exertion, struggle, restraint, and multiple electro muscular disruption device applications.[ii]
Cody Franklin’s father sued on behalf of his estate and alleged that the defendant’s deputies violated his son’s right to be free from excessive under the Fourth Amendment, as well as state law claims that will not be discussed in this article. The district court granted summary judgment and dismissed the case for Franklin County and the sheriff but denied qualified immunity for two deputies. Those deputies appealed the denial of their motion for qualified immunity.
The district court denied qualified immunity for Deputy Joseph Griffeth and Sergeant Nathan Griffith for two reasons. First, the district court determined that the right to be free from excessive force was clearly established and the court held this case should be been obviously clear to any reasonable deputy to be excessive force. However, the court of appeals held that the district court determined the law was “clearly established” based on general legal principles. Instead, the law, through case precedent, must be clear enough to put every reasonable deputy on notice that the specific conduct committed violated the constitution. Additionally, the court of appeals stated
[W]e have explained that an officer’s “repeated use of [a] taser against a potentially violent, defiant arrestee was not an obvious case.” See Brossart v. Janke, 859 F.3d 616, 625 (8th Cir. 2017). We cannot square our observation in Brossart with the district court’s thinking here.[iii]
The second reason the district court denied qualified immunity for the deputies was the general principle that “it is excessive force to use a taser on a non-fleeing, non-violent” misdemeanor suspect.[iv] The court of appeals started by questioning whether Franklin could be considered a misdemeanor suspect after he had violently fought with police officers; however, the court noted that even if one assumed that Franklin was a misdemeanor suspect, the record is still clear that Franklin fought and acted violently and uncooperatively with the police. As such, the legal principle regarding “non-violent” suspects above did not apply to Franklin’s case.
The court then examined numerous cases from the Eighth Circuit that permit the use of the Taser in the manner in which the deputies used the device against Franklin. Specifically, the court stated
In Brossart, we held that an officer who tased a violent, defiant arrestee at least five times did not violate the Fourth Amendment. 859 F.3d at 622, 625. We did so again when officers tased a violent, resisting arrestee up to ten times. See Zubrod v. Hoch, 907 F.3d 568, 572, 580 (8th Cir. 2018). These decisions are consistent with the Supreme Court’s holding, in the context of a police chase in which officers fired fifteen gunshots, that “if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” See Plumhoff v. Rickard, 572 U.S. 765, 777 (2014). Here, the threat of Franklin’s violent aggression did not subside until after the final shot of the taser. We have held it reasonable, moreover, for officers to use tasers and their own body weight to subdue combative jail detainees, apparently under the influence of drugs, who resist officer efforts to move them. See Ryan v. Armstrong, 850 F.3d 419, 422-24, 427 (8th Cir. 2017). In short, the scene here “was a tumultuous one involving seemingly aggressive and noncompliant behavior, circumstances which we have previously held rendered officers’ uses of tasers reasonable.” Rudley v. Little Rock Police Dep’t, 935 F.3d 651, 654 (8th Cir. 2019).
The fact that Franklin was tased three times in drive-stun mode while in handcuffs does not affect the result. Franklin continued to resist the officers while he was in handcuffs. We have allowed the use of tasers on detainees in handcuffs in appropriate circumstances. See, e.g., LaCross v. City of Duluth, 713 F.3d 1155, 1156-57 & n.3 (8th Cir. 2013). A person in handcuffs can still present a danger to officers. See United States v. Pope, 910 F.3d 413, 417 (8th Cir. 2018). We have also observed that a tasing in drive-stun mode “only causes discomfort and does not incapacitate the subject,” suggesting that effects of such force are de minimis. See Brossart, 859 F.3d at 626. We therefore cannot say that Joseph acted unreasonably when he used a taser as he did in this circumstance.[v]
Thus, the court held that the use of the Taser against Franklin up to eight times, to include some of the uses in drive-stun mode, did not violate the Fourth Amendment’s right to be free from excessive force and, as such, the deputies were entitled to qualified immunity.
Franklin also argued that there was no reason to Tase him the final three times when the deputies were attempting to remove his handcuff’s in the isolation cell. The court asked, hypothetically, why the deputies could not have just left Franklin in the isolation cell with the handcuffs on since he resisted their efforts to remove the handcuffs. However, the court noted that the deputies offered objectively reasonable explanations for why they needed to remove the handcuffs from Franklin and why the use of force was reasonable in order to accomplish this.
First, the deputies testified that if they allowed Franklin to remain handcuffed in the cell alone, in his intoxicated state, he could have fallen while handcuffed and broken his wrists or arms or hit his head. Second, the deputies testified that if they allowed him to remain handcuffed, he could have maneuvered the cuffs to the front of his body and used them as a weapon when someone entered the cell. As such, the court held the deputy’s actions were reasonable under the Fourth Amendment.
Therefore, court of appeals reversed the decision of the district court and remanded the case back to that court with instructions to grant qualified immunity for the deputies.
[i] No. 19-1854 (8th Cir. Decided April 24, 2020 )
[ii] Id. at 2
[iii] Id. at 4 (emphasis added)
[v] Id. at 4-5 (emphasis added)