Use of force events do not occur in a vacuum; they are generally governed by department policies that contain a use of force “spectrum” which define increasing levels of force, and the circumstances that justify moving from one level to the next.
The spectrum typically ranges from no-force measures like “officer presence” up to the use of “deadly force.”
Use of Tasers generally falls on the more extreme end of the spectrum, reflecting recognition that Tasers are more invasive than tactical holds, handcuffing, and even the use of pepper spray, asps or batons.
In other words, police department policies recognize that Tasers are not a go-to device where other, less intrusive tools, can accomplish a particular task. According to most policies, the use of Tasers should be reserved for “last-resort” situations before moving to lethal or deadly force.
People may be surprised to learn that Tasers occupy such an extreme position on the use of force spectrum, especially given their use in seemingly everyday situations that call for nothing more than a simple tactical hold, or a defensive maneuver taught at every police academy.
This has fostered a belief that police are using Tasers as a crutch, or a substitute for proper training, and that police are using Tasers as a short-cut to accomplish goals that could be handled using less invasive options.
The Tenth Circuit recently addressed these issues in Aldaba v.Pickens, 2015 U.S. App. LEXIS 1822 (10th Cir. February 4, 2015), a case involving police officers called to a hospital in response to a non-compliant patient with pneumonia who was delirious from dehydration and attempting to leave against medical advice.
When officers arrived, hospital staff briefed them on the situation, and the officers attempted to reason with the patient before giving him verbal commands to get on the ground. When the patient did not comply, the police used a Taser in dart-mode, slammed the patient against the wall, and used the Taser again in drive-stun mode.
Officers then kicked the patient’s legs out from underneath him, took him to the ground and handcuffed him. The patient became unresponsive and died several hours later from “respiratory insufficiency secondary to pneumonia.”
The medical examiner said the taser shots “certainly could” have increased the patient’s need for oxygen, and he further testified the exertion caused by the patient’s physical struggle with the officers “exacerbated his underlying pneumonia.” The patient’s treating physician also testified that placing a man in the prone position with his hands cuffed behind his back could compromise his body’s ability to inhale and get oxygen.
The Tenth Circuit’s analysis into the use of force began by determining whether the officer’s conduct violated the patient’s constitutional rights.
The Court surveyed cases from the United States Supreme Court, and the Tenth, Ninth, Seventh, and Sixth Circuits that addressed the permissible use of force against a passively resistant suspect who poses no threat to officers.
In doing so, the Court concluded that the evidence supported an inference that the officers violated the patient’s “constitutional rights by employing such a severe level of force against him despite their knowledge of his mental instability, his serious medical condition, and the fact that he had committed no crime and posed a threat only to himself.”
The Court then asked whether, at the time of the incident, a reasonable officer would have known that using a Taser under these circumstances would violate the constitution.
This question is decidedly more difficult to answer because there is not a case on point from either the Tenth Circuit or the United States Supreme Court that would directly inform the decision-making of the officers on scene.
But the lack of specific case law is not a shield that insulates unreasonable conduct. As the Tenth Circuit has repeatedly emphasized, “[t]he more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.”
In the case of Tasers, the Court examined its own spectrum of cases.
On one end lies Hinton v. City of Elwood, 997 F.2d 774 (10th Cir. 1993), where a subject refused to talk to police after they asked him to stop, shoved an officer, and was tased during the ensuing struggle.
The Court recognized this situation “stands for the uncontroversial proposition that a misdemeanant who ignores an officer’s orders to stop, shoves an officer, and then actively and openly resists arrest by, among other things, biting the officer, has no clearly established right not to be tased during the struggle.”
At the other end of the spectrum lies Casey v. City of Fed. Heights, 509 F.3d 1278 (10th Cir. 2007) which “clearly established that an officer could not tase a non-violent misdemeanant who appeared to pose no threat and who was given no warning or chance to comply with the officer’s demands.”
The Court went on to emphasize that its decision in Casey was not merely an invitation to use a Taser upon issuing a warning.
Properly read, Casey stands for the proposition that “it is excessive to use a Taser to control a target without having any reason to believe that a lesser amount of force—or a verbal command—could not exact compliance.”
With Casey as a backdrop, the Court surveyed other jurisdictions and concluded that, at the time of the incident, any reasonable officer would know that “it is not objectively reasonable to employ a taser as the initial use of force against a seriously ill, non-criminal subject who poses a threat only to himself and is showing only passive resistance, regardless of whether they provide a warning first.”
The decision in Aldaba is an emphatic warning to police that Tasers are not a weapon of first choice.
Where the circumstances suggest that police may accomplish their task using a lesser amount of force, principles of convenience will not justify a short-cut, and the Court will not absolve officers who employ a Taser-first mentality where the use of force is not justified by the circumstances.
Following Aldaba, police officers are on notice that using a Taser against a non-compliant person, who poses no threat to the officer, constitutes excessive force in violation of the Fourth Amendment.
While individual officers may voice concern about future Taser use, that concern is likely an exaggerated response; the decision in Aldaba simply requires officers to follow the use of force spectrum already enshrined by their own policy.