In 2018, the Fifth Circuit Court of Appeals decided Cadena v. Ray[i], which serves as an excellent review of the law related to excessive force.  The relevant facts of Cadena are as follows:

[The] evidence in this case consists of two videos, one recorded by Cadena on his cell phone and one taken by a nearby security camera. As Cadena filmed his wife’s arrest for public intoxication in a hotel lobby, an officer, who later gave an affidavit stating that “Cadena smelled of intoxicants, had bloodshot eyes, [and] was unsteady on his feet,” ordered Cadena to leave the lobby and wait outside. Cadena did not comply with this order but instead spoke to his wife, yelled to his brother-in-law, who was also intoxicated and had approached the scene, and accused Officer Rodriguez of assault.

Cadena started toward the lobby exit, but then proceeded around a column, returning to the scene of the arrest of his wife, and approached Officer Rodriguez from behind. Officer Rodriguez instructed Cadena to “put [his] hands behind [his] back.” Cadena said “No, I’m not” five times and began to backpedal. Officer Rodriguez pushed Cadena against a wall, and Officers Rodriguez and Ray attempted to subdue him by wrestling him face-down to the ground, but he refused to surrender his arms.

Assisted by two other officers, Officers Rodriguez and Ray flipped Cadena onto his back. One of the officers kneeled on him as Officer Marotta entered the lobby from the street. Officer Marotta fired a taser round at Cadena, who responded by swiping at one of the officers standing over him. Cadena alleges that Officer Marotta fired a second taser round shortly thereafter. The officers then handcuffed Cadena and arrested him. Simultaneously, Cadena’s brother-in-law approached the arresting officers and was himself placed under arrest.

Cadena suffered a cut next to his right eye and taser marks on his buttocks. He also alleges numbness in his left hand and anxiety as a result of the incident.[ii]

Cadena sued the officers for violating his rights under the First, Fourth and Fourteenth Amendments.  The district court granted summary judgment to the officers and dismissed the suit.  Cadena appealed to the Fifth Circuit Court of Appeals.

On appeal, Cadena only appealed the dismissal of his Fourth Amendment excessive force claim.  Specifically, he argued that it was excessive force to (1) throw him against the wall in the hotel, (2) to take him to the ground, (3) to pin and knee him when he was on the ground, and (4) to use the Taser twice against him.

The court of appeals first noted the legal principles relevant to whether the officers used excessive force.  The court stated

Whether force was excessive to the need and objectively unreasonable depends on the totality of the circumstances and “must be judged from the perspective of a reasonable officer on the scene.” (Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)). In this analysis we pay particular attention to (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 [the suspect] is actively trying to resist arrest” or flee.  Id.[iii]

Regarding pushing Cadena against the wall and taking him to the ground, the court noted that when he was ordered to leave the area, Cadena refused.  When Cadena was ordered to put his hands behind his back, instead of complying, he backed away from the officer and circled back around a column in the lobby behind the officer.  Further, the court considered the fact that Cadena was intoxicated and behaved erratically.

The court also examined precedent related to similar behavior and stated

In Poole v. City of Shreveport, we held that a suspect who “refus[ed] to turn around and be handcuffed . . . posed an ‘immediate threat.’“  691 F.3d 624, 629 (5th Cir. 2012) (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam)). . . When the suspect in Poole “backed away from the [arresting] officers,” we said he had “actively resist[ed]” arrest. (Poole, 691 F.3d at 629 (quoting Deville, 567 F.3d at 167). Similarly, Cadena backed away from Officer Rodriguez after being ordered to put his hands behind his back.[iv]

The court of appeals also noted that the officers responded to Cadena with “measured and ascending actions.”  For example, the officers originally spoke calmly with Cadena for several minutes, telling him to the leave the area.  When he refused to leave, the officers told him to put his hands behind his back.  These verbal commands gave Cadena the opportunity to comply with the officers’ commands.  When Cadena then started backing away from the officers and circled back around a column, an officer pushed him into a wall and then he was taken to the ground.  On the ground, Cadena refused to surrender his arms for handcuffing, thus, the officers pinned and kneed him.  The court of appeals stated that this continued resistance provided “officers with further reason to believe Cadena was a threat,” and, as such, the officers’ increased use of force was deemed “measured and ascending actions” – as the resistance continued, the officers increased the force in a measured and reasonable manner.  Specifically, the court stated

[W]e have approved of “‘measured and ascending’ actions that correspond[] to [an arrestee’s] escalating verbal and physical resistance.” Cadena continued to resist even after he was wrestled to the ground. The security camera footage shows that Officers “pinned and kneed” Cadena when he resisted while the Officers effected the arrest. Each element of the Officers’ “take down” corresponded to Cadena’s level of resistance, and was thus reasonable. [v]

Thus, the court of appeals held the push, take down, pin and use of the knee did not violate the Fourth Amendment.

The court of appeals also examined the use of the Taser.  The court stated

Use of a taser is appropriate when a suspect continues to resist arrest. We have held that tasing is permissible “after [a suspect] continuously fail[s] to comply” and “resist[s] handcuffing,” particularly when it is not “the first method to gain . . . compliance.” (Pratt v. Harris Cty., Tex., 822 F.3d 174, 182 (5th Cir. 2016)). But we have also said that tasing is inappropriate where either it is unclear that the plaintiff was resisting (See Darden v. City of Fort Worth, 880 F.3d 722, 729-31 (5th Cir. 2018)) or the plaintiff was not resisting at all. (See Pena v. Rio Grande City, 879 F.3d 613, 619-20 (5th Cir. 2018)). [vi]

In Cadena’s case, the video evidence showed that after Cadena was taken to the ground by four officers, he continued to resist and would not surrender his arms.  The court stated that “only after officers tried conventional methods to subdue Cadena,” did Officer Marotta intervene by using his Taser.  Regarding the second use of the Taser, the video showed that immediately after the first use of the Taser, Cadena used his arm to “swipe” at one of the arresting officers.  The court stated that Officer Marotta

[C]ould have reasonably interpreted Cadena’s swipe as an escalation of resistance, justifying the second Taser shot as a proportional response.[vii]

As such, the court held that the use of the Taser did not violate the Fourth Amendment.

Therefore, since all uses of force were held to be reasonable under the Fourth Amendment, the court of appeals affirmed the grant of summary judgment in favor of the officers.

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] 728 Fed. Appx. 293 (5th Cir. 2018 Unpublished)

[ii] Id. at 294-295

[iii] Id. at 295-296 (emphasis added)

[iv] Id. at 296 (emphasis added)

[v] Id. at 296-297

[vi] Id. at 297 (emphasis added)

[vii] Id.