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No Qualified Immunity for Cop Who Tased Without Reason

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By Jonathan R. Tung, Esq. on April 04, 2016 9:56 AM

The Fourth Circuit reviewed yet another taser case last Thursday and again found that a cop who went overboard with tasing should not enjoy qualified immunity protection for his actions.

As always, the court went through a thorough and belabored discussion of the appropriateness of qualified immunity. But even without the rigorous judicial analysis, it should be clear to anyone that repeatedly zapping someone on the ground who isn't trying to flee is going to mean legal trouble.

Pertinent Facts

The case began when the plaintiff, Brian Yates, was driving on a highway, followed by his mother and brother in another car behind him. Yates passed by defendant-officer Christopher Blair Terry who trailed Yates and eventually pulled him over at a gas station. Terry demanded Yates' driver license. When Yates told Terry that he had no license, but did have his military ID, Terry forced Yates out of the car and ordered Yates to put his hands on the car. Yates complied.

By now, Yates' brother and mother had arrived. Yates turned his head to look at them and Terry tased Yates who fell to the ground. Yates' brother asked Terry why he was tasing Yates. Terry responded negatively and tased Yates again. Yates made no attempt to flee but instead grabbed his cell phone and threw it to his brother, telling him to call Terry's correctional officer. Terry tased Yates a third time. Meanwhile, Mrs. Yates fainted.

Circuit Affirms, Denies Qualified Immunity

Yates sued and the district court eventually found that Terry had used excessive force. On appeal, the Fourth Circuit simplified the analysis that had first been attempted by the district court. At the district level, the court decided to analyze each of the different taser strikes as a separate incident of excessive force. It concluded that the first two strikes were clearly excessive and should not be granted summary judgment as requested. As to the third, the district judge said "I do think that the third taser shot needs closer scrutiny."

The Fourth Circuit, however, concluded that the better approach would be to "approach a case ... "in full context, with an eye toward the proportionality of force" in view of the totality of the circumstances.

Objective Reasonableness

Qualified Immunity will guard government officials for their acts unless their actions violate "clearly established rights" within the knowledge of a reasonable person. The question is whether or not a "clearly established constitutional right" has been violated.

The circuit's "totality" test revealed that review strongly favored Yates. The circuit applied Graham v. Connor, the Supreme Court's 1989 ruling on excessive force claims.

Under Graham, there were plenty of reasons to find excessive force. First, subsequent cases generally found that traffic violations alone should not support the use of a "significant level of force" (such as a taser.) Second, Yates was not an objective threat to either Terry or the public. He was unarmed and lying on the ground. Third, he was also compliant to Terry's orders and was not actively resisting arrest. Even to someone not educated in civil rights law, it is clear that some right was being violated. No objective person could have possibly believed that under those circumstances that tasering someone was protected action under qualified immunity.

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