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Officers Not Immune From Suit in New Mexico Taser Case

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By Jonathan R. Tung, Esq. on April 08, 2016 6:58 AM

The Tenth Circuit affirmed a lower court's ruling that two police officers were not immune from suit when they taser-shot a mentally ill man at least ten times within two minutes.

This case doesn't come as much of a shock as other courts have recently acheived similar rulings. For example, the Fourth Circuit recently found no qualified immunity for police officer who tased without reason.

The Incident in Question

The plaintiff brought a wrongful death suit against Albuquerque police officers and related defendants over the death of her son, Jerry Perea. Mrs. Perea called local police one night distraught that her son was on "very bad drugs" and was worried about what he might do. A neighbor called in to report that Perea was walking about aimlessly and calling out to God.

Officers were dispatched to conduct a welfare check. They found Perea talking to himself while also riding a bicycle. Perea averted the police and ran through a stop sign. Eventually the officers got out of their car and pushed Perea off of his bicycle. He did not submit to arrest. Officers increased the power to their tasers and subdued Perea.

But the officers continued to taser Perea even though he was effectively subdued: ten times within a two minute time span. He was later pronounced dead at a local hospital.

Qualified Immunity for Police Officers

Although the exact elements of qualified immunity differ from jurisdiction to jurisdiction and circuit to circuit. An officer is immune from suit for excessive use of force unless the plaintiff can prove that officers or officer in question violated a clearly established statutory or constitutional right. In this context, "clearly established" generally means the reasonable law enforcement officer should know that the subject conduct is a violation of that right; but is subject to more exacting analysis.

Graham v. Connor: Your Golden Graham Factors

The district court granted qualified immunity to the officers as to pushing Perea off of his bike, but denied qualified immunity as to the ten taser shots within the two minute time frame. The circuit affirmed the district court wholly.

In analyzing the "clearly established" prong, the circuit employed the SCOTUS case of Graham v Connor. In Graham, it was determined that a suspect's rights against excessive "seizure" of his person should be weighed against the countervailing interests of the state under an "objectively reasonable officer" standard. The factors considered are: the totality of the circumstances, the severity of the crime, and whether the suspect is resisting arrest.

In the case at hand, the Tenth Circuit noted that officers were aware that Perea was mentally unstable and that no reports of weapons were made. Since Perea did not appear to be a danger to others, the factors generally weighed in his favor. Additionally, the circuit didn't buy the officer's claim that the underlying crime of cycling through a stop-sign justified their tasing him ten times within two minutes. This rather minor infraction could not support the amount of force used against him. Under the third prong, the circuit concluded that too much force was used in light of Perea's resisting arrest.

Circuit Splits

As we'd mentioned, there have been many qualified immunity suits springing up lately. At least one case went in favor of the police officers.

For criminal law practitioners, excessive use cases tend to be very fact reliant. But a good rule of thumb is this: use the amount of force that seems proportionate. Kicking a man while he's down on the ground will likely lead to an excessive force lawsuit.

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