On April 6, 2021, the Fifth Circuit Court of Appeals decided Cloud v. Stone[i], which serves as an excellent review of the law related to both the use of a Taser and deadly force.  The relevant facts of Cloud, taken directly from the case, are as follows:

Around midday on August 29, 2017, Deputy Luker observed  Cloud speeding on  I-20 in Simsboro, Louisiana. Luker followed Cloud off the interstate and pulled him over on Highway 80, across the street from Simsboro High School. When Luker wrote Cloud a ticket for driving 13 m.p.h. over the speed limit, Cloud protested that Luker could not possibly have seen him on the interstate. Cloud refused to sign his ticket, which is grounds for arrest under Louisiana law. See La. Stat. Ann. § 32:391(B).

Luker attempted to arrest Cloud. He had Cloud exit his pickup truck and face its side with his hands behind his back. Standing behind Cloud, Luker handcuffed his left wrist, at which point Cloud turned partially around to his left. (Plaintiffs contend Cloud turned around, not to keep arguing, but because he had a hearing impairment. We address that assertion below. See infra Section III.A & n.9.) Luker ordered Cloud to turn back around and reached for his right hand to finish handcuffing him. But Cloud then spun all the way around, turning away from Luker’s reach and facing him head-on, with the handcuffs hanging from his left wrist.

With Cloud now facing him, Luker stepped a few feet back and tased Cloud in the chest. Though both taser prongs hit Cloud and began cycling, they did not incapacitate him. Cloud yelled and pulled the prongs from his chest. Luker then released his police dog from his car with a remote button and tried to regain control of Cloud. Luker grabbed Cloud around the waist and tased him again, now with the taser in “drive-stun” mode.

The two men, grappling with each other, moved toward the truck’s open door. Cloud produced a revolver from somewhere near the driver’s seat. As the two struggled for control of the gun, it discharged twice, the second shot hitting Luker in the chest. Luker was in pain but unable to tell how badly he was injured: as it turned out, his protective vest spared him all but a minor injury. As the struggle continued, Luker managed with one hand to radio police dispatch that shots had been fired. Luker was then able to wrest the revolver out of Cloud’s hands and throw it to the ground on the street behind him. With Cloud disarmed and the police dog now engaging, Luker drew back a short distance, withdrew his duty weapon, and ordered Cloud to get on the ground.

At this point, Cloud was crouching in his truck’s doorway, keeping the dog at arm’s length with his hand on the dog’s head. Cloud’s revolver was on the ground, behind Luker and to his left. Then, according to Luker, Cloud rushed toward him—”directly at [his] chest or to [his] left a little bit”—and started to move past him. Luker turned to his left, with Cloud’s shoulder brushing across his chest. As Cloud lunged toward the revolver lying on the ground, Luker fired two shots into Cloud’s back. Cloud was pronounced dead at the scene shortly thereafter.[ii]

Cloud’s parents (the Plaintiffs), filed suit in federal district court and alleged, among other things, that Deputy Luker used excessive force in violation of the Fourth Amendment. The Plaintiffs also sued the sheriff and the District Attorney.  The district court dismissed the suit against all defendants, holding the use of force was reasonable under Fourth Amendment.  The Plaintiff’s appealed to the Fifth Circuit Court of Appeals.  [Note: This article will only discuss the excessive force claims.]

On appeal, the Fifth Circuit first discussed the law regarding qualified immunity.  The court stated

To rebut Luker’s qualified immunity defense, Plaintiffs must point to summary judgment evidence “(1) that [Luker] violated a federal statutory or constitutional right and (2) that the unlawfulness of the conduct was ‘clearly established at the time.’Rich v. Palko, 920 F.3d 288, 294 (5th Cir. 2019) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589, 199 L. Ed. 2d 453 (2018)), cert. denied, 140 S. Ct. 388, 205 L. Ed. 2d 217 (2019).[iii]

Thus, the Plaintiffs must first show that the deputy violated the Fourth Amendment.  Second, the Plaintiffs must show that the law was clearly established such that another reasonable officer in the same situation would have known he was violating the Fourth Amendment.

As such, the court set out to first determine if the deputy violated the Fourth Amendment when he used his Taser, first in probe mode, and second in drive-stun mode.  The court then set forth the legal standards by which they evaluate the reasonableness of an officer’s use of force.  The court stated

An officer violates the Fourth Amendment when an arrestee “suffers an injury that results directly and only from a clearly excessive and objectively unreasonable use of force.” Joseph ex rel. Estate of Joseph v. Bartlett, 981 F.3d 319, 332 (5th Cir. 2020); see also Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). “Crucially, this analysis must be objective: To make out a Fourth Amendment violation . . . ‘the question is whether the officer[‘s] actions are objectively reasonable in light of the facts and circumstances confronting [him], without regard to their underlying intent or motivation.'” Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012) (quoting Graham, 490 U.S. at 397) (cleaned up). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.[iv]

The court of appeals further noted factors that should be considered in a use of force evaluation.  The court stated

Graham identifies several factors bearing on the reasonableness of force: with “careful attention to the facts and circumstances of each particular case,” courts consider [1] “the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Ibid. We consider “not only the need for force, but also the relationship between the need and the amount of force used.” Joseph, 981 F.3d at 332 (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)) (internal quotation marks omitted). Faced with an uncooperative arrestee, officers properly use “measured and ascending actions that correspond to [the arrestee’s] escalating verbal and physical resistance.” Id. at 332-33 (quoting Poole, 691 F.3d at 629) (cleaned up).[v]

Simply put, the court will look at the following:

  • The severity of the crime at issue;
  • Whether the suspect posed an immediate threat to the safety of the officers or others;
  • Whether the suspect is actively resisting or attempting to flee;
  • The relationship between the need for force and the amount used; and
  • Whether officers properly used “measured and ascending actions” that correspond to the verbal and physical resistance of the suspect.

The court then set out to apply the facts of Cloud’s case to the factors above.  Regarding the first factor, the severity of the initial crime was “relatively minor.”  Regarding the second factor, whether the suspect posed an immediate threat, the court explained that Deputy Luker was only deputy on scene.  As such, when Cloud disregarded verbal commands and turned to squarely face the deputy, with one handcuff dangling and the door to his truck open next to him, there was “some threat” to the officer’s safety.  However, the court focused most on the third factor, Cloud’s active resistance.  The court stated

Our cases on police use of tasers have paid particular attention to whether officers faced active resistance when they resorted to a taser. Where, as here, the severity of crime and immediate safety threat are relatively inconclusive, a suspect’s active resistance to arrest may justify this degree of force. For example, we have held that two officers were reasonable to tase an arrestee because he had “aggressively evaded [their] attempts to apprehend him,” and because they did so after the arrestee “continuously failed to comply,” other “efforts to subdue [him] were ineffective,” and the arrestee had “continued to resist handcuffing” and “kicked an officer after being taken to the ground.” Pratt v. Harris Cnty., 822 F.3d 174, 182 (5th Cir. 2016). In that case, we took as further evidence of “measured and ascending” action that “neither officer used [his] taser as the first method to gain [the arrestee’s] compliance.” Ibid.; see also Buchanan v. Gulfport Police Dep’t, 530 F. App’x 307, 314 (5th Cir. 2013) (“[W]here a suspect resists arrest or fails to follow police orders, officers do not violate his right against excessive force by deploying their tasers to subdue him.”).[vi]

The Fifth Circuit also noted that it is excessive force to use a Taser on a person who is merely offering passive resistance.

In Cloud’s case, the court stated that the evidence shows that Cloud was actively resisting, which gave Deputy Luker reasonable grounds to use the Taser.  Particularly, while the deputy was trying to handcuff Cloud, he turned partially around.  The deputy ordered Cloud to turn back around, but Cloud instead turned to fully face deputy, with a handcuff dangling from his wrist.  The court also noted that before the deputy resorted to the Taser, he used verbal commands and only the force needed to handcuff; however, when that proved ineffective, the deputy used his Taser.  This is the “measured and ascending actions” in relation to the suspect’s resistance the court listed as a factor to consider.

The Plaintiffs argued that the Cloud was merely passively resistant when he turned around to face the officer.  However, the court disagreed and stated

Plaintiffs argue that Cloud’s resistance was merely passive, but this mischaracterizes the record. Cloud was more than merely uncooperative or argumentative: his actions—not just his failure to follow directions—prevented Luker from completing a lawful arrest. This conduct compares unfavorably with our passive-resistance cases, as well as those of other courts. In Newman, for example, we found a man’s resistance was passive when he did not disobey any commands and at most pushed himself backwards off a car after officers struck him. 703 F.3d at 762-63. Likewise, in Ramirez, we found passive resistance when a man not yet under arrest or any suspicion exchanged angry words with an officer and pulled his arm out of the officer’s grasp. 716 F.3d at 372, 378; see also, e.g., Brown v. City of Golden Valley, 574 F.3d 491, 494, 497 (8th Cir. 2009) (passive resistance where passenger in pulled-over car refused command to hang up her phone).

Therefore, the court held that Cloud was actively resisting because his actions prevented the deputy from completing the arrest, such that he was doing more than merely failing to follow directions.

The Plaintiffs also alleged that Cloud turned around to read the deputy’s lips because he had a hearing impairment.  The court noted that the there was no evidence the deputy was aware of the hearing impairment.  Cloud was not wearing hearing aids, and he previously responded to the deputy.  Therefore, the court held that even if Cloud did, in fact, have a hearing impairment, it does not change the outcome or the deputy’s reasonable belief that Cloud was actively resisting arrest.

The Plaintiffs also argued that the deputy’s second use of the Taser, in drive-stun mode, was excessive force.  The court disagreed and noted that this use of the Taser happened seconds after the first use, which proved to be ineffective, and occurred while the situation was still tense and rapidly evolving.  There was also no evidence to suggest that Cloud had ceased his resistance.  The court stated

It is true that the same incident can include both lawful and unlawful uses of force. See, e.g., Carroll v. Ellington, 800 F.3d 154, 174, 176-78 (5th Cir. 2015) (granting qualified immunity for one officer’s initial taser use but not others’ subsequent uses of force); Joseph, 981 F.3d at 335 (“Force must be reduced once a suspect has been subdued.”). Because Luker’s initial tase had no effect, however, the circumstances justifying force were still present during the drive-stun tasing. Plaintiffs have not pointed to evidence that Cloud complied with any commands or ceased to resist arrest after the first tase. Although Plaintiffs suggest that only a few seconds elapsed between Luker’s initial tase and his drive-stun maneuver, the situation remained “tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at 397.  Under these circumstances, Luker’s continued force to complete the arrest, like his initial tase, was reasonable.[vii]

Therefore, the court held that Deputy Luker’s uses of the Taser were reasonable under the Fourth Amendment.

The Fifth Circuit then set out to examine whether Deputy Luker used excessive force when he shot Cloud.  The court first examined the relevant legal principles and stated

Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985); see also Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009). Our precedent teaches that officers use lethal force justifiably if they reasonably believe the individual is reaching for a gun. See, e.g., Salazar-Limon v. City of Houston, 826 F.3d 272, 278-79 (5th Cir. 2016). We have adhered to this standard even in cases when officers had not yet seen a gun when they fired, or when no gun was ever found at the scene. See, e.g., Manis v. Lawson, 585 F.3d 839, 844-45 (5th Cir. 2009); Reese v. Anderson, 926 F.2d 494, 500-01 (5th Cir. 1991). To show a triable issue, a plaintiff must generally “present[] competent summary judgment evidence that [the arrestee] did not reach . . . for what [the officer reasonably] perceived to be a weapon.” Salazar-Limon, 826 F.3d at 278.[viii]

The court then examined the relevant facts.  During the attempted arrest, Cloud retrieved a handgun.  He and the deputy wrestled over the gun, and Deputy Luker was shot in the chest.  Deputy Luker got control of Cloud’s gun and threw it behind him.  Cloud then made a sudden move toward the gun.  Deputy Luker shot Cloud twice, in the back, as he was moving toward the gun.  While the Plaintiffs alleged that Cloud was trying to escape rather than retrieve the gun, the court of appeals held

Whatever Cloud’s intentions, the circumstances warranted a reasonable belief that Cloud threatened serious physical harm. The lethal force was therefore not constitutionally excessive.[ix]

Therefore, the court of appeals held that the deputy’s use of deadly force was reasonable under the Fourth Amendment.

Since neither the use of the Taser or the use of deadly force amounted to excessive force, the court of appeals affirmed the grant of summary judgment and qualified immunity for all defendants in this case.



[i] No. 20-30052 (5th Cir. Decided April 6, 2021)

[ii] Id. at 1-4

[iii] Id. at 5-6 (emphasis added)

[iv] Id. at 6 (emphasis added)

[v] Id. at 6-7 (emphasis added)

[vi] Id. at 8-9 (emphasis added)

[vii] Id. at 12-13 (emphasis added)

[viii] Id. at 13 (emphasis added)

[ix] Id. at 14

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