On May 26, 2021, the Sixth Circuit Court of Appeals decided the Estate of Erwin v. Greene County[i], which serves as an excellent review regarding the law related to the reasonable use of Tasers under the Fourth Amendment. The relevant facts of Erwin, taken directly from the case, are as follows:
In the years preceding her death, Beunos Erwin lived with her son, Cody Erwin, in two residences next door to each other in Greene County, Tennessee. Shortly after midnight on September 24, 2017, Mr. Erwin called the Greene County Sheriff’s dispatch to request assistance with his then-81-year-old mother, who was upset and combative. Mr. Erwin told dispatch that he did not know what to do with his mother, who was running in and out of their house, beating their car and the basement door with a broom, and yelling at imaginary intruders to get off their property. He also explained that his mother had threatened to kill him and assaulted him previously during similar episodes.
When county emergency medical technicians and police officers, including defendant Lt. Michael Jones, arrived on the scene, they found Ms. Erwin lucid and pleasant. But soon after the responders left, Mr. Erwin heard his mother yelling at imagined intruders again, and he called police a second time. Lt. Jones was again dispatched to the scene, with two other officers. Upon exiting his vehicle Lt. Jones could not locate Ms. Erwin, and Mr. Erwin was still inside the house.
Soon thereafter, Lt. Jones saw Ms. Erwin walking from one of their residences, along a path coming towards the road where he had parked his vehicle. When Ms. Erwin was still about 25 feet away, Lt. Jones shined his flashlight on her and noticed that she was carrying a bow rake, or garden rake, with rigid metal tines designed to break up compacted soil. Lt. Jones perceived that Ms. Erwin had an “offensive posture” with the rake, concluding that it was “being prepared to [be] use[d] as a weapon.” (Defs.’s Excerpts of Depo. of Michael Jones (“Jones Depo.”), R. 35-6, PageID 151.) As she advanced, Ms. Erwin yelled at Lt. Jones, “Get off my land!” and “You hear me . . . get out of here!” (Ex. A to Defs.’s Mot. for Summ. J. (Jones Dashcam Video), R. 38, at 1:50-1:56.) Lt. Jones answered, “You better stop,” and Ms. Erwin responded, “No, I’m not gonna stop. I’m not gonna stop.” (Id. at 1:58-2:02.) Very shortly after, when Ms. Erwin was around ten to twelve feet from Lt. Jones and essentially in the road, he deployed his taser against her. Mr. Erwin had emerged from the other residence just seconds before. He recalled seeing his mother “brandishing the rake” as she advanced towards Lt. Jones and that she only stopped upon being tased. (Defs.’s Excerpts of Depo. of Cody Erwin (“Erwin Depo.”), R. 35-5, PageID 130-31, 136.).[ii]
Ms. Erwin filed suit and alleged that Lt. Jones violated her right under the Fourth Amendment to be free from excessive force. Ms. Erwin later died from causes unrelated to this suit, and Mr. Erwin, Ms. Erwin’s son, pursued the suit on behalf of Ms. Erwin’s estate. Later, the district court granted summary judgment for Lt. Jones and the county. The Estate appealed the grant of summary judgment to the Sixth Circuit Court of Appeals. [Note: This article will not discuss the state law claims.]
On appeal, the Sixth Circuit first noted that in order for a plaintiff to defeat an officer’s qualified immunity, the plaintiff must show (1) that the officer violated a constitutional right, and (2) the right was clearly established at the time of the violation such that another reasonable officer would have known he was violating the right.
The court of appeals then began to examine the legal principles related to whether Lt. Jones violated Ms. Erwin’s rights under the Fourth Amendment when he Tased her. The court noted that the right to be free from excessive force stems from the Fourth Amendment’s right to be free from an unreasonable seizure. The court also noted that the Supreme Court has provided a framework to evaluate the reasonableness of a use of force. The court stated
In Graham, “[t]he Supreme Court . . . articulated three factors for us to consider in determining the objective reasonableness of a particular use of force.” Roell v. Hamilton Cty., Ohio/Hamilton Cty. Bd. of Cty. Comm’rs, 870 F.3d 471, 480 (6th Cir. 2017). The factors are: “ the severity of the crime at issue,  whether the [claimant] poses an immediate threat to the safety of the officers or others, and  whether [she] is actively resisting arrest or attempting to evade arrest by flight.” Stewart, 970 F.3d at 672 (quoting Graham, 490 U.S. at 396). These three “important considerations,” id., are not exhaustive, see Estate of Hill v. Miracle, 853 F.3d 306, 314 (6th Cir. 2017). Additionally, in this analysis we must remember that “[p]olice officers routinely face ‘tense, uncertain, and rapidly evolving’ situations that force split-second judgments about the degree of force required.” Reich v. City of Elizabethtown, 945 F.3d 968, 978 (6th Cir. 2019) (quoting Graham, 490 U.S. at 396-97).[iii]
The court of appeals then examined the facts of the case in light of the factors above from Graham v. Connor. At the outset, the court noted that the first factor, the severity of the crime at issue, weighs in favor of the Estate. Ms. Erwin was not suspected of a crime. Lt. Jones was at the Erwin’s because Ms. Erwin was having a mental episode.
Additionally, the court noted that the third factor, whether Ms. Erwin was actively resisting or attempting to evade arrest by flight also weighed in favor of the Estate. Again, Lt. Jones was not affecting an arrest of Ms. Erwin when she was Tased.
The second factor however, whether Ms. Erwin posed an immediate threat to the officer, is the factor that is dispositive in this case. The court described the relevant facts as follows:
Lt. Jones was responding to a call about a combative person who had been swinging a broom toward places where she believed imaginary intruders were located. After Lt. Jones exited his vehicle, Ms. Erwin “walk[ed] with intent” towards him (Jones Depo., R 35-6, Page ID 148), steadily advancing with a five-foot long bow rake in her hands. As she approached Lt. Jones, Ms. Erwin began holding the rake with both hands in what he described as “an offensive posture” (Jones Depo., R. 35-6, PageID 151) and yelled at him to get off her property. Ms. Erwin then expressly rejected Lt. Jones’ commands that she stop advancing. When she was just ten to twelve feet away, Lt. Jones perceived her to be an imminent threat of harm and tased her.[iv]
Based on these facts, the court stated that Lt. Jones’s perception that Ms. Erwin posed an imminent threat of harm was objectively reasonable.[v]
The court of appeals then addressed the various arguments raised by the Estate. First, the Estate attempted to minimize the threat posed by Ms. Erwin. However, Mr. Erwin, who witnessed the incident, corroborated Lt. Jones’ version of events. Particularly, he stated that his mother was “brandishing the rake” and “cussing” at Lt. Jones.[vi] He also stated that Tasing his mother was what “stopped her” and that she was holding the rake across her body. As such, the threat perceived by Lt. Jones was reasonable.
Second, the Estate argued that Ms. Erwin did not “lunge, swing or run” at Lt. Jones. The Estate argued that a Sixth Circuit case, Lopez v. City of Cleveland[vii], supported their position that summary judgment is not appropriate. In Lopez, the court denied summary judgment to officers because there was a factual question regarding whether the decedent, who was holding a machete, made any movement toward or raised the machete toward a nearby family member. The court of appeals, in the Estate of Erwin, stated that Ms. Erwin was walking toward Lt. Jones with the metal rake and holding it in an offensive posture, therefore, the rationale of Lopez does not apply.
Third, the Estate argued that Ms. Erwin was “elderly and slight.” However, at his deposition, Mr. Erwin acknowledged that his mother had no physical disabilities, was healthy for her age, and stated, “the way she was out there running around, there’s no doubt.”[viii]
Fourth, the Estate argued that a reasonable officer would have realized that his mother was “mentally unwell” and acted accordingly. However, the court stated
In this situation, however, her mental instability in no way diminished the objective threat of harm she posed. See Rucinski v. County of Oakland, 655 F. App’x 338, 342 (6th Cir. 2016) (“[Plaintiff] identifies no case law restricting an officer’s ability to use deadly force when she has probable cause to believe that a mentally ill person poses an imminent threat of serious physical harm to her person[.]”).[ix]
Thus, Ms. Erwin’s actions gave Lt. Jones a reasonable belief that she posed a threat, and her mental instability did not require Lt. Jones to restrict his use of reasonable force in order to mitigate that threat.
The court of appeals further explained their rationale in holding that Lt. Jones’ decision to Tase Ms. Erwin was reasonable under the Fourth Amendment. The explanation, worth quoting in full, is as follows:
Given the threat of imminent harm that Ms. Erwin posed to Lt. Jones, his decision to use non-lethal force to stop her advance was objectively reasonable. We have previously “found tasing reasonable where individuals were particularly violent or physically resistant, so as to endanger responders.” Kent, 810 F.3d at 391. Even so where the claimants were unarmed. See, e.g., Rudlaff v. Gillespie, 791 F.3d 638, 640, 643 (6th Cir. 2015). Moreover, where a person advances towards officers wielding a weapon, we have repeatedly concluded that deadly force is permissible, even in wellness check situations. In Reich v. City of Elizabethtown, for instance, we found it was not excessive for officers to shoot a decedent who was undergoing a schizophrenic breakdown when he disregarded commands to drop his knife, taunted officers, and made advances towards them. See 945 F.3d at 973-75, 979-81; see also Rucinski, 655 F. App’x at 340-43. Similarly, in Hanson v. City of Fairview Park we suggested that if the decedent had threatened officers with a raised golf club shooting him would have been objectively reasonable. See 349 F. App’x 70, 76 (6th Cir. 2009). If threatening officers with a knife or golf club can justify deadly force, then Ms. Erwin’s aggressive advance with a metal bow rake justified tasing.[x]
Lastly, the Estate argued that Lt. Jones could have evaded the elderly Ms. Erwin and her rake or wrestled it away from her. The court of appeals explained why that argument fails as follows:
The Estate argues that Lt. Jones could have nonetheless evaded Ms. Erwin or wrested the rake from her grasp. But the confrontation happened at night on the edge of the road. Though Jones might conceivably have avoided using force by backing into the road, attempting to reenter his vehicle, or turning his back to Ms. Erwin to jog around in the dark, it was not unreasonable—as a “split-second” judgment, Reich, 945 F.3d at 978—for him to conclude that these options also would have left him exposed to potential harm. The Fourth Amendment does not require that officers expose themselves to a plausible risk of bodily injury to avoid using non-deadly force against an armed assailant, much less to grapple with them for control of the weapon. Cf. Reich, 945 F.3d at 982 (officers need not wait to be within striking range of an assailant to deploy force).[xi]
As such, the court held that Lt. Jones is entitled to summary judgment based on qualified immunity on the Fourth Amendment excessive force claim.
[i] No. 20-6006 (6th Cir. Decided May 26, 2021 Unpublished)
[ii] Id. at 1-3
[iii] Id. at 5-6 (emphasis added)
[iv] Id. at 7
[vii] 625 F. App’x 742 (6th Cir. 2015)
[viii] Id. at 9
[ix] Id. at 9-10 (emphasis added)
[x] Id. at 10 (emphasis added)
[xi] Id. at 11 (emphasis added)