Civil Rights – Excessive Force – Taser – Search Warrant Execution – Immunity – Municipality

Fordham v. Greenville Police Officer Doe (Lawyers Weekly No. 11-02-1084, 17 pp.) (James C. Dever III, Ch.J.) E.D.N.C.

Holding: Where plaintiff refused to comply with an officer’s instructions to get on the ground, the defendant police officer did not violate a clearly established constitutional right when he tasered plaintiff once.

Defendants’ motion to dismiss is granted.

Greenville police executed a search warrant of plaintiff’s home. Plaintiff’s friend, Monte Corey, answered the door. When he saw the police, Corey tried to keep the police out.

After the police forced their way into plaintiff’s home, plaintiff claims he stood with his hands up, as one officer ordered. He did not get down on the floor, as another officer ordered. Defendant Officer John Doe tasered plaintiff.

Municipal Liability

Plaintiff alleges the defendant-city failed to train officers regarding proper taser use, amounting to deliberate indifference. However, plaintiff has not presented any facts to support his claim. Moreover, plaintiff has presented no facts indicating that the alleged failure to train resulted from city policymakers’ deliberate indifference to citizens’ constitutional rights.

Assuming without deciding that 21 sustained complaints gave city policymakers constructive notice of improper taser use, plaintiff has failed to show that knowledge of these 21 sustained complaints gives rise to a specific intent or deliberate indifference to correct or terminate the officers’ improper behavior.

Although plaintiff claims that the city did not respond to these complaints, he provides no factual basis for this assertion. Rather, he merely asserts that the city, as a matter of policy, fails to inform complaining citizens of corrective action taken against officers found to have used their tasers improperly. However, the failure to inform citizens of corrective action does not necessarily suggest that such corrective action was not taken or suggest that any improper taser use equates to an excessive use of force.

Without providing plausible allegations that support deliberate indifference on the part of the city policymakers, plaintiff cannot show that any indifference caused his injuries. Therefore, plaintiff fails to state a claim for municipal liability, and the court dismisses his 42 U.S.C. ¤ 1983 claim against the city.

Officer’s Immunity

Plaintiff claims that Officer Doe used the taser on him ‘’while he was peaceably standing in his residence, committing no crime, and was threatening harm to no person.” However, plaintiff’s complaint shows that the situation was not so tranquil.  Doe and the Drug Task Force were entering an unfamiliar residence to execute a search warrant concerning narcotics. The officers encountered active resistance from Corey when Corey discovered that law enforcement officers were seeking entrance. Upon entering the residence, the officers found two adult males close to the door. Thus, Doe reasonably believed that he was entering a hostile environment when he entered the residence and was reasonably prepared to address any threat that the occupants of the home might pose to officer safety.

Moreover, plaintiff concedes that, in Doe’s presence, at least one of the officers instructed him to get on the ground and that he failed to comply. Doe then used his taser one time on plaintiff after plaintiff refused to comply with the other officer’s instructions. Under the totality of the circumstances, Doe’s taser use was reasonable.

Alternatively, a reasonable officer could have believed on February 26, 2009, that using the taser one time in these circumstances was permissible under the Fourth Amendment. Existing Supreme Court and Fourth Circuit precedent on February 26, 2009, did not place the constitutional question beyond debate. Thus, qualified immunity applies.

As to plaintiff’s state-law claims, the complaint does not plausibly allege that Doe acted maliciously, corruptly, or outside the scope of his duty. Moreover, the complaint shows that Doe reasonably believed that tasing plaintiff was necessary in discharging his duties. Therefore, North Carolina’s public official immunity bars plaintiff’s assault and battery claims against defendant Doe.

Motion granted.