When police officers use conducted energy weapons, such as Tasers, it is important to remember that each use or activation of the weapon must be reasonable.  Jackson v. Washtenaw Cnty[i], decided by the Sixth Circuit Court of Appeals, examined four separate uses of a Taser on a suspect and illustrates this point. The relevant facts of Jackson are as follows:

On August 20, 2010, Detective Michael Marocco was engaged in a drug investigation of Stanley Jackson (“Jackson”) in Superior Township, Michigan. Marocco was parked down the street from where Jackson was standing in his mother’s driveway and the detective observed various persons approach Jackson. On two occasions, Jackson removed an object from his pants and handed it to his visitor. After the second interaction, Marocco contacted Deputy Sean Urban and advised him to make contact with Jackson and the other man. Deputies Urban and Mercure arrived on the scene in uniform and approached the two men. Deputy Urban was wearing a body microphone, the audio of which was transcribed. Urban asked Jackson, “Hey, what’s going on partner? Come here a second.” Jackson clutched his waistband and began backing away toward the garage, saying “I didn’t do it man.” Urban commanded Jackson to stop, but he turned and ran into his mother’s house, repeating “I did not do it, man.” While Jackson fled, Urban observed that he kept his hands near his waistband.

Urban pursued him into the house, unholstered his Taser, and warned him, “Stop. I’ll tase you.” In the kitchen, Jackson stopped and turned around, and Urban, allegedly fearing Jackson would pull a weapon from his waistband, fired his Taser in probe mode. Struck by the probes, Jackson fell to the floor (Taser No. 1). Urban repeatedly ordered Jackson to put his hands behind his back, but his muscles were rigid as a result of the Taser and Urban was unable to pull his arms around to handcuff him. Mercure entered the house and handcuffed [**4]  one of Jackson’s wrists while Urban separately handcuffed the other. The deputies then realized that Jackson was not blinking, had his eyes and jaw locked, and had begun to salivate. Mercure called for an ambulance to arrive urgently and the two deputies asked Jackson if he was all right and told him to relax. Jackson started to move once again and pulled his hands away from his back. Using “muscling techniques,” the deputies attempted to bring Jackson’s wrists near enough together to handcuff them to each other, while Jackson shouted incoherently and struggled. Mercure unholstered his Taser, and Urban warned, “Stop resisting. I’m gonna [sic] tase you again.” Mercure tased Jackson on his upper back for three seconds (Taser No. 2), but did not observe any effect on Jackson.

Deputy Holly Farmer arrived and assisted Urban and Mercure in trying to bring Jackson’s arms together, but the three officers and Jackson rolled on the floor in the attempt. The deputies ordered Jackson to turn on his stomach, and Mercure unholstered his Taser once more.  Jackson was turned onto his stomach as Mercure went to tase him and the Taser was discharged for five seconds (Taser No. 3).  While Jackson pulled and kicked, Farmer’s arm became trapped between Jackson’s head and arm. Farmer saw Jackson open his mouth and bring it to her arm as if to bite it. When he made contact, Farmer punched Jackson in the jaw and yelled, “Don’t bite.” While this occurred, Deputy Dean Reich arrived and attempted to assist in restraining Jackson by securing his legs to prevent him from turning over. Urban and Reich secured Jackson’s left arm to his belt using the handcuffs on Jackson’s left wrist. Jackson continued to struggle using his right arm despite repeated orders from Urban: “Get your hands behind your back. L[ie] down.” Urban then tased Jackson for five seconds (Taser No. 4).

The deputies pulled Jackson’s right wrist behind him and handcuffed it to the pair of handcuffs on Jackson’s left wrist. Jackson continued to twist about, spitting and yelling, “Get off me.” Jackson was searched and no weapon was found on him, although a plastic bag with cocaine was found in his waistband, money was found in his front pocket, and a Michigan Department of Corrections tether on his ankle.

When paramedics arrived, they put a disconnected oxygen mask on Jackson to prevent him from spitting on them. After the mask was removed to take his picture, Jackson spat at Urban’s face and continued to struggle against his restraints in the ambulance, preventing paramedics from fully checking his condition. Upon arrival at the hospital, he continued to be “extremely agitated,” and spat at doctors in the emergency room. Hospital records state that because Jackson was combative, security personnel were summoned and placed restraints on him. Although doctors reported his breathing as unlabored, Jackson repeatedly stated that he could not breathe. To calm Jackson, a physician prescribed 2 mg of Ativan (lorazepam), which was administered and caused him to relax. But after two minutes, Jackson went limp and doctors could not find a pulse. Jackson was pronounced dead after doctors were unable to resuscitate him. The reported cause of death on the autopsy was listed as cardiac arrest from nonocclusive ischemic heart disease associated with acute adrenergic stress reaction, with the Taser application recorded as a potential contributor to stress.[ii]

Jackson’s mother, as personal representative of Jackson’s estate, filed suit in federal court against Washtenaw County and the four deputies involved in this incident.  The plaintiff alleged that the officers violated the Fourth and Fourteenth Amendments and also alleged various state law claims, which are not discussed in this article.  The district court granted the defendants’ motions for qualified immunity.  The plaintiff appealed to the Sixth Circuit court of appeals and argued that the deputies’ use of force against Jackson was objectively unreasonable.

The Sixth Circuit first noted the general legal principles applicable in use of force cases.  The court stated

The Fourth Amendment enshrines the people’s right to freedom from unreasonable seizures. The use of force by police officers will constitute a seizure, and force that is “‘objectively [un]reasonable’ in light of the facts and circumstances confronting” officers violates a federal right. Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Courts endeavor to analyze “reasonableness at the moment” the force was used, “rather than with the 20/20 vision of hindsight.” Id. at 396. In examining the use of force by an officer, we 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.” Hayden v. Green, 640 F.3d 150, 153 (6th Cir. 2011) (quoting Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006)).[iii]

The plaintiff argued that Jackson had submitted to the deputies when they Tased him four times and punched him in the face, and as such, the force used by the deputies was unreasonable under the Fourth Amendment.  Therefore, the issue before the court of appeals was whether Jackson was actively resisting arrest, or whether a reasonable officer could perceive that he was actively resisting arrest.

The court then discussed what types of behavior constitutes active resistance.  The court stated

We have long distinguished active resistance by arrestees from passive resistance. See Goodwin v. City of Painesville, 781 F.3d 314, 323 (6th Cir. 2015). The former can be characterized by physical force, a show of force, or verbal hostility coupled with failure to comply with police orders. See ibid.; Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015). [iv]

Thus, as the term suggests, active resistance typically requires some type of physical resistance, but can also be present when a suspect threatens physical resistance or is verbally hostile combined “with a failure to comply with police orders.”

In contrast, the court stated that passive resistance is

[G]enerally shown by the lack of physical resistance or verbal antagonism. See Austin v. Redford Twp. Police Dep’t, 690 F.3d 490, 498 (6th Cir. 2012); Eldridge v. City of Warren, 533 F. App’x 529, 535 (6th Cir. 2013).

The court of appeals then noted that

When a suspect actively resists arrest, the police can use a taser (or a knee strike) to subdue him; but when a suspect does not resist, or has stopped resisting, they cannot.” Rudlaff, 791 F.3d at 642.[v]

With these principles in mind, the court then set out to examine each use of the Taser and the punch, because each application of the Taser or punch could be a separate violation, depending on the facts of the case.

The First Use of the Taser

The relevant facts for the first use of the Taser were as follows:  Jackson fled into his mother’s house, ignoring commands to stop.  Once Jackson was in the house, he suddenly stopped and turned toward the deputy, with his hand on his waistband.  The deputies also had been given information that Jackson sometimes carries a .38 revolver when he sells drugs.  Additionally, the court noted that immediately before the deputies pursued Jackson, he was selling drugs, and drug dealing has “a well-recognized nexus with firearms.”[vi]

The court then stated

Where a suspect has refused to follow police orders and may be in possession of a weapon, we have determined there is no clearly established right to resist that can defeat qualified immunity. See Watson v. City of Marysville, 518 F. App’x 390, 393 (6th Cir. 2013); see also McGee v. City of Cincinnati Police Dep’t, No. 1:06-cv-726, 2007 U.S. Dist. LEXIS 28665, 2007 WL 1169374, at *6 (S.D. Ohio Apr. 18, 2007). While Jackson was in one sense complying with Urban’s command to stop, his further turning around with his hand by his waist presented itself as an immediate threat to the officer. And though it became clear after all four tasings that Jackson was unarmed, we must make “allowance for the fact that police officers are often forced to make split-second judgments” regarding their safety and that of others. Graham, 490 U.S. at 397.[vii]

Thus, the court of appeals held that the first use of the Taser did not violate Jackson’s rights under the Fourth Amendment.

The Second Use of the Taser

Immediately after the first use of the Taser, Jackson “crumpled to the ground” and the deputies attempted to handcuff him.  However, his muscles were “tense” and they were unable to bring his arms close enough to secure the handcuffs.  The deputies realized his eyes were not moving and believed he was in distress from the use of the Taser.  They began asking Jackson if he was okay and called for EMS.  Almost three minutes after the Tasing, Jackson began moving and “wrestling with the officers.”  The deputies warned him that he would be Tased again and when Jackson did not stop resisting, a deputy Tased him again.

The court of appeals stated

It is clear that if Jackson were flailing or resisting solely as a result of the initial Taser shock and this was apparent to officers, they would then be in violation of Jackson’s constitutional rights. In Goodwin, we found a violation of clearly established rights where a man was tased again for “resisting” where he was “obviously convulsing” from the effects of a Taser deployed seconds earlier. 781 F.3d at 327. But in Wysong v. City of Heath, 260 F. App’x 848 (6th Cir. 2008), we held that resistance by a man suffering a hypoglycemic attack could constitute active resistance where officers were not aware the man was in diabetic shock and the man testified he could not remember what transpired. Id. at 856-57.[viii]

Thus, if Jackson’s movement or resistance was solely the result of the Taser shock (neuromuscular incapacitation) and this was apparent to the officers, then it would violate his rights to Tase him again for this involuntary action.  However, if officers reasonably mistake a suspect’s actions as resistance, then this would not violate the suspect’s rights.  By example, the court noted that resistance by a man in diabetic shock could constitute active resistance where the officers did not know that the man was experiencing that medical condition.

In Jackson’s case, the court of appeals noted that the deputies did not Tase Jackson while he was experiencing the effects of the first use of the Taser.  Rather, after about three minutes, Jackson appeared to “come out of his condition” and “pulled his arms toward his stomach and waist away from the deputies.”  The court stated

We have held that a failure to present one’s arms to an officer upon request without more is at most passive resistance, but that a physical struggle to maintain control of one’s limbs while being placed in handcuffs can be active resistance. Compare Griffith v. Coburn, 473 F.3d 650 (6th Cir. 2007), and Eldridge, 533 F. App’x at 535 (“[N]oncompliance alone does not indicate active resistance . . . .”), with Caie v. West Bloomfield Township, 485 F. App’x 92 (6th Cir. 2012); see also Rudlaff, 791 F.3d at 643. . . in Goodwin we acknowledged that “resist[ing] arrest by ‘laying down . . . and deliberately locking [one’s] arms together tightly under [one’s] body while kicking and screaming” was active resistance. Goodwin, 781 F.3d at 326 (quoting Eldridge, 533 F. App’x at 534).[ix]

The court of appeals then held that a reasonable officer “could have believed that Jackson was actively resisting and no longer suffering the effects” of the first use of the Taser.[x]  Therefore, the second use of the Taser did not violate the Fourth Amendment.

The Third Use of the Taser 

The third use of the Taser occurred about fifteen seconds after the second use.  The court noted that this use of the Taser occurred at the same time Jackson was being rolled onto his stomach.  The court noted that

[O]fficers 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.” Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).[xi]

The plaintiff argued that Jackson was no longer resisting arrest.  However, the court explained, in light of the “tense, uncertain, and rapidly evolving” circumstances,

[I]f in fact Jackson was no longer resisting, or was complying with police commands, as opposed to continuing to struggle to break free, that would not have been apparent to a reasonable officer.[xii]

In other words, in the middle of the struggle with Jackson, it would not be apparent to a reasonable officer if Jackson suddenly stopped resisting, or stated another way, a reasonable officer could mistakenly believe that Jackson was continuing to resist based on the tense, rapidly evolving circumstances.

Thus, the third use of the Taser did not violate the Fourth Amendment.

The Punch to Jackson’s Face

After the third use of the Taser, Deputy Farmer’s arm got trapped between Jackson’s head and arm.  Jackson began moving his mouth toward her arm and attempted to bite her.  She punched him in the jaw to prevent him from biting her.  The court stated

Farmer’s actions were reasonable given there existed probable cause to believe that harm was imminently threatened. See Chappell v. City of Cleveland, 585 F.3d 901, 911 (6th Cir. 2009).[xiii]

Thus, the punch did not violate the Fourth Amendment.

The Fourth Use of the Taser

The fourth use of the Taser was about a minute after the third.  The deputies had secured one handcuff to Jackson’s belt and he continued to pull away from the deputies.  A deputy Tased Jackson and they were able to secure the handcuffs.  The court stated

We have found that where resistance continues, repeated attempts to induce compliance are permissible. See, e.g., Williams v. Sandel, 433 F. App’x 353 (6th Cir. 2011)[xiv]

The court of appeals then held that the four uses of the Taser and the punch “were reasonable responses to the resistance (real or perceived) made by Jackson.”[xv]

Therefore, the court of appeals affirmed the grant of qualified immunity for 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] 678 Fed. Appx. 302 (6th Cir. 2017 Unpublished)

[ii] Id. at 304-305

[iii] Id. at 306 (emphasis added)

[iv] Id. (emphasis added)

[v] Id. (emphasis added)

[vi] Id. at 307 (citing ., United States v. Golter, 880 F.2d 91, 94 (8th Cir. 1989))

[vii] Id. at 306 (emphasis added)

[viii] Id. at 307 (emphasis added)

[ix] Id. (emphasis added0

[x] Id.

[xi] Id. at 308 (emphasis added)

[xii] Id.

[xiii] Id. (emphasis added)

[xiv] Id. at 309 (emphasis added)

[xv] Id. (emphasis added)