On April 21, 2023, the Fifth Circuit Court of Appeals decided Beroid v. Lafleur[i], which serves as an excellent review of the law related active resistance, the use of a Taser, and excessive force. The relevant facts of Beroid are as follows:
According to Beroid’s complaint, he alleged that Officers LaFleur, Leblanc and Senegal were dispatched to his parents’ house after receiving a call from his fiancée about an argument the two were having. After the situation settled down, Beroid’s fiancée left, and he remained at his parents’ house where he intended to stay for the evening. Beroid alleged that the officers remained outside for thirty to forty-five minutes before approaching the door a second time. Beroid’s mother answered and was asked if he was still home. He came to the door and Officer LaFleur ordered him to grab his shoes and to come with them because there was a warrant for his arrest. He denied the existence of a warrant and refused to go with the officer. He retreated further into the house. Beroid alleged that the officers then “barged into the house” and attempted to grab him by the shirt. His shirt slipped off which prompted him to step a few feet further into the house.
Beroid alleged that moments after entering the house and without warning, Officer LaFleur shot him with a taser which forced him to drop to the ground. Once on the ground, Officer LaFleur demanded that Beroid put his hands behind his back. Officer Senegal told him that if he did not comply with Officer LaFleur’s instruction he would “light [him] up again.” As Beroid was handcuffed he explained that the charges underlying the warrant were dropped and repeatedly asked what the charges were for and from what year. Officer LaFleur eventually responded that he did not know the details about the charges but that the warrant was confirmed by the Jennings Police Department. Beroid was taken to the Sherriff’s Office where he met with EMT personnel to be treated for the injuries he sustained during his arrest. He alleged that he overheard the officers tell the EMT personnel that he had been “fighting” and that he overheard conversation between the officers corroborating “a false version of the incident”.[ii]
Beroid sued the officers in federal court for violating his right to be free from unreasonable, excessive force under the Fourth Amendment. The district court held that the plaintiff failed to establish that the officers acted unreasonably in the use of force and dismissed the suit. Beroid appealed to the Fifth Circuit Court of Appeals.
The court of appeals noted that Beroid included references to body camera footage with his complaint, and the district court relied upon the body camera video, which was inconsistent with some of the facts in the complaint. The court of appeals noted that the district court was correct in its reliance on the video; however, the court of appeals chose to conduct the appeal relying only on the facts in the complaint because that was sufficient to render an opinion on this case.
The court of appeals first examined what a plaintiff must establish to prevail on an excessive force claim under the Fourth Amendment. The court stated
To prevail on an excessive force claim under the Fourth Amendment, Beroid “must establish ‘(1) [an] injury (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.'” Ratliff v. Aransas Cnty., 948 F.3d 281, 287 (5th Cir. 2020) (quoting Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)).[iii]
Regarding the injury, the court noted that the injury must be more than “de minimus.” The court also noted that “any force found to be objectively unreasonable exceeds the de minimus threshold.”[iv] Beroid alleged that he received burn marks on his arm and back, anxiety and other psychological injuries from being Tased. Thus, if the force were unreasonable, this would not be considered “de minimus” injury and would meet the first element of an “injury.”
The court then discussed the legal principles related to determining if force is reasonable. The court stated
In determining whether the use of force was reasonable, we must assess the totality of the circumstances. See Elizondo v. Green, 671 F.3d 506, 510 (5th Cir. 2012); see also Massey v. Wharton, 477 Fed. Appx. 256, 262 (5th Cir. 2012) (per curiam) (analyzing several important factors including “whether he [was] actively resisting arrest or attempting to evade arrest by flight“) (internal citation omitted). Further, “[t]he 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 v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (internal citation and quotation marks omitted). Thus, not every push or shove violates the Fourth Amendment. Id. (internal citation and quotation omitted). Instead, “the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id at 396-97 (internal citation and quotation marks omitted).[v]
Beroid argued that the officers were unreasonable in Tasing him because (1) he was not aware that he was under arrest since the officers never stated, “you are under arrest,” and (2) he was not warned prior to being Tased.
Next, the court examined law related to the use of a Taser. The court stated
Our cases involving the use of a taser to effectuate an arrest focus on whether the officers faced active resistance. See Cloud v. Stone, 993 F.3d 379, 384 (5th Cir. 2021) (citing Pratt v. Harris Cnty., 822 F.3d 174, 182 (5th Cir. 2016)) HN7[] (“[A] suspect’s active resistance to arrest may justify this degree of force.”).[vi]
The court discussed their decision in Poole v. City of Shreveport[vii] in which they upheld as reasonable the use of a Taser during an arrest when the plaintiff verbally and physically resisted arrest.
The court also examined whether it is necessary for an officer to use the phrase, “you are under arrest” before using force to effect the arrest. The court discussed Tucker v. City of Shreveport[viii] in which they held that “lights and sirens coupled with being told to put his hands behind his back” were sufficient to put the plaintiff on notice he was being arrested. Thus, the subsequent use of force to take the plaintiff, who verbally and physically resisted, to the ground was determined to be reasonable.
The court of appeals then examined the facts alleged in Beroid’s complaint in light of the legal principles discussed above.
Beroid’s first argument was that the officer’s never told him, “you are under arrest,” so he was not aware he was being arrested. The court noted that the plaintiff stated in his complaint that Officer Lafleur told him to “grab his shoes and come with them because there was a warrant for his arrest.” The court of appeals held that this was sufficient to put Beroid on notice that he was being arrested.
Beroid’s second argument was Officer Lafleur violated his rights under the Fourth Amendment when he “shot him with a taser without warning even though he was not committing a crime, was unarmed, and was not actively resisting arrest.”[ix] The court of appeals disagreed and stated
Beroid was on notice that he was being arrested therefore his refusal to comply and his subsequent retreat into the house was active resistance. As we have repeatedly held, the use of a taser is a reasonable level of force when a suspect is resisting arrest. Thus, Officer LaFleur’s use of force was reasonable in this situation. See Stone, 993 F.3d at 384; see also Buchanan v. Gulfport Police Dep’t, 530 F. App’x 307, 314 (5th Cir. 2013) (per curiam) (“[W]here a suspect resists arrest or fails to follow police orders, officers [did] not violate his right against excessive force by deploying their tasers to subdue him.”).[x]
In this case, Beroid refused to comply with the officer’s commands and he retreated into his house, which the court held to be “active resistance.” Therefore, the claim against Officer Lafleur for excessive force failed, as the officer acted reasonably under the Fourth Amendment.
The court also considered Beroid’s argument that Officer’s Leblanc and Senegal violated the Fourth Amendment when they “stood idly by and otherwise made no attempt to use other, less forceful tactics to arrest him.”[xi] However, since Officer Lafleur did not use excessive force the other officers had no duty to intervene on behalf of Beroid. Therefore, this claim also failed.
As such, the court of appeals affirmed the decision of the district court in favor of the officers on the Fourth Amendment claims.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] No. 22-30489 (5th Cir. Decided April 21, 2023 Unpublished)
[ii] Id. 1-3
[iii] Id. at 5 (emphasis added)
[iv] Id. at 6
[v] Id. at 6-7 (emphasis added)
[vi] Id. at 7 (emphasis added)
[vii] 691 F.3d 624 (5th Cir. 2012)
[viii] 998 F.3d 165 (5th Cir. 2021)
[ix] Beroid at 9
[x] Id. (emphasis added)
[xi] Id. at 10
