On March 5, 2021, the Eleventh Circuit Court of Appeals decided Prosper v. Martin[i], in which the court examined whether an officer violated the Fourth Amendment when he Tased a man who had punched him and subsequently used deadly force when the man attempted to bite off the officer’s finger.  The relevant facts of Prosper are as follows:

In the early morning hours of September 28, 2015, Prosper was driving his taxi on NW 119th Street in Miami when he apparently lost consciousness, allowing his taxi to slowly drift off the road and collide with a pole near the I-95 on-ramp. Minutes later, a bus driver named William Devy noticed Prosper’s taxi and pulled over to assist. He approached the taxi on foot and peered through the window. Seeing Prosper slumped over in the driver seat and breathing heavily, Devy tapped on the glass. Prosper did not respond, so Devy tapped louder. Prosper’s arm jerked, and Devy retreated to call 911.

He told the dispatcher that a taxi had run into a pole and its driver looked like “he’s passing out.” After a few minutes, Prosper exited the taxi and, as Devy told the dispatcher, began “running” up the on-ramp toward I-95. A tow truck operator named Raul Sandoval pulled over to ask Devy what was happening. Still on the 911 call, Devy pointed to Prosper and told Sandoval he thought Prosper was drunk and had stolen the taxi.

Officer Martin then arrived on the scene in response to a dispatch call that a taxi had run into a pole. Devy and Sandoval pointed Prosper out to Martin, told him Prosper was running up I-95, that he was “on something” and “acting weird,” and that the taxi was “probably stolen.” Martin then approached Prosper in his police cruiser on the I-95 on-ramp, activated his emergency lights, and commanded Prosper through the cruiser speaker to “stop walking.” Prosper did not obey Martin’s commands, but continued walking up the ramp. Prosper’s gait struck Martin as abnormal—in Martin’s words, Prosper was “stumbling” and “looked like a zombie almost.”  Observing that Prosper was coming dangerously close to traffic, Martin exited his cruiser and approached Prosper on foot. . . According to Martin, Prosper punched him in the face after he tried to direct Prosper away from highway traffic. Martin struck back, took out his taser, and began commanding Prosper to “get down” and “get on the ground” so that he could make an arrest. Prosper started advancing toward Martin, and Martin discharged his taser, causing Prosper to fall down an embankment beside I-95.

Prosper crawled away from Martin through some bushes and Martin pursued. Prosper then emerged from the brush and began running toward a nearby fence. While running, Prosper tripped and fell, allowing Martin to catch up to him. Martin ordered Prosper to “turn over” and “place his hands behind his back.” When Prosper did not obey, Martin drive stunned him with his taser. Prosper then lunged at Martin, bit down on Martin’s left index finger, and dragged Martin down on top of him.

Martin dropped his taser and immediately began trying to pry Prosper’s jaws open with his free hand while begging Prosper to release his finger. When that failed, he reached for his firearm and shot Prosper once in the chest. Prosper continued biting Martin’s finger while “twisting and turning” his head from side to side. Martin shot Prosper a second time, and when Prosper still did not release his finger, he fired a third shot, killing Prosper.[ii]

While the plaintiff, Prosper’s mother and administrator of his estate, offered a different version of events, it was based on a blurry surveillance camera at nearby airfield.  The court found that it was not sufficiently clear to rely upon and thus the court decided the case based on the officer’s version of events, as there was no other video or witnesses.

The district court granted qualified immunity for Officer Martin, and the plaintiff appealed.

On appeal, the court examined whether the officers use of the Taser was reasonable under the Fourth Amendment, and whether the officer’s use of deadly force was reasonable under the Fourth Amendment.

The court of appeals first discussed the general legal principles regarding the use of force.  The court stated

The constitutional right at issue here comes from the Fourth Amendment‘s prohibition against unreasonable seizures of the person—specifically, the freedom from excessive uses of force. Graham v. Connor, 490 U.S. 386, 394-95, 109 S. Ct. 1865, 1870-71, 104 L. Ed. 2d 443 (1989). As with Fourth Amendment claims generally, the touchstone of excessive force claims is “reasonableness.” See id. at  [*1251]  395, 109 S. Ct. at 1871. Determining whether an officer’s use of force is reasonable “requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Id. at 396, 109 S. Ct. at 1871 (quotation marks omitted). “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, 109 S. Ct. at 1872.

Importantly, we must judge the officer’s actions “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396, 109 S. Ct. at 1872. The question, ultimately, is whether the officer’s actions were “objectively reasonable” in light of the facts and circumstances confronting him, including “[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.” Id. at 396-97, 109 S. Ct. at 1872. When the use of deadly force is at issue, we ask whether “the officer had probable cause to believe that the suspect posed a threat of ‘serious physical harm’ to the officer or others, and whether the officer had given the suspect a warning about the use of deadly force, if doing so was feasible.” Cantu v. City of Dothan, Ala., 974 F.3d 1217, 1229 (11th Cir. 2020).

The Use of the Taser

The Eleventh Circuit discussed their precedent regarding Taser use and stated

We have held that “the use of a taser gun to subdue a suspect who has repeatedly ignored police instructions and continues to act belligerently toward police is not excessive force.” Zivojinovich v. Barner, 525 F.3d 1059, 1073 (11th Cir. 2008) (citing Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004)); see also Smith, 834 F.3d at 1294 (determining the use of a taser was reasonable on suspect who was armed with a knife, repeatedly disobeyed commands to drop the knife, and moved toward officers with the knife); Mobley v. Palm Beach Cnty. Sheriff Dep’t, 783 F.3d 1347, 1356 (11th Cir. 2015) (concluding the use of a taser was reasonable to effectuate arrest of suspect who was hostile, belligerent, and uncooperative); cf. McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1245 (11th Cir. 2003) (holding that use of pepper spray was reasonable when officer “had probable cause to believe that McCormick had committed a violent felony” and “could have reasonably determined that McCormick still posed a threat of further violence“). When an officer uses his taser “against a non-hostile and non-violent suspect who has not disobeyed instructions,” however, he violates that suspect’s rights under the Fourth Amendment. Fils v. City of Aventura, 647 F.3d 1272, 1289 (11th Cir. 2011); see also Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009) (concluding officer used excessive force when he repeatedly tased suspect “into and beyond his complete physical capitulation”).[iii]

When Officer Martin first approached Prosper on foot, Prosper punched Martin in the face.  Officer Martin drew his Taser and commanded Prosper to get on the ground.  Prosper began advancing toward Officer Martin, so he Tased him.  Prosper fell down an embankment subsequently ran from Martin.  Prosper tripped, and Martin ordered Prosper to put his hands behind his back.  Prosper refused and Officer Martin drive-stunned him with the Taser.

Based on these facts, the court of appeals held

It was thus reasonable for Martin to believe that Prosper posed an immediate threat to his person and would not submit to arrest without a fight. Martin’s use of his taser in this situation did not violate Prosper’s Fourth Amendment rights.[iv]

Therefore, the use of the Taser was reasonable under the Fourth Amendment.

The Use of Deadly Force

The court of appeals defined the issue for use of deadly force in this case as follows:

The critical inquiry on the deadly force claim is whether an officer in Martin’s position reasonably could have believed that Prosper posed a serious threat of physical harm at the time Prosper had Martin’s finger in his mouth.[v]

The court looked at the relevant facts of the case.  First, when the officer arrived, he saw that Prosper was behaving erratically and irrationally.  He was stumbling and looked “out of it.”  Second, Prosper was immediately uncooperative when the officer gave him commands to stop over his vehicle’s PA system.  Third, Prosper punched Officer Martin, which showed he was violent.  Fourth, Officer Martin saw that the use of the Taser failed to subdue Prosper.  The court of appeals then stated

The foregoing observations inform the way a reasonable officer would have assessed the danger posed to his person, as well as the defense necessary to mitigate that danger, in the critical moments before Martin fired the deadly shots into Prosper’s chest. At that time, Martin’s finger was locked between Prosper’s jaws and quickly going numb, and a reasonable officer could well calculate that a plea or warning would be as ineffectual as his previous attempts at communication. Nonetheless, Martin pled with Prosper to “please stop” and attempted in vain to pry his finger free. Martin feared he might lose his finger, rendering him unable to defend himself against further, potentially deadly attacks from Prosper. In this “tense, uncertain, and rapidly evolving” situation, Graham, 490 U.S. at 396-97, 109 S. Ct. at 1872, it was reasonable for Martin to believe that Prosper posed an imminent threat of serious physical harm to his person and that deadly force, without any further warning, was necessary to prevent that harm.[vi]

Therefore, the court of appeals held the use of deadly force was reasonable under the Fourth Amendment, as Prosper posed an “imminent threat of serious physical harm” when he had Officer Martins finger in his mouth and vigorously biting him.

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] 989 F.3d 1242 (11th Cir. 2021)

[ii] Id. at 1245-1246

[iii] Id. at 1254 (emphasis added)

[iv] Id.

[v] Id. at 1253

[vi] Id. at 1254 (emphasis added)