Civil Rights – Excessive Force Claim – Proximate Cause — TASER – Threatened Self-Injury – Tort/Negligence

Cook v. Riley (Lawyers Weekly No. 12-03-0696, 38 pp.) (L. Patrick Auld, USMJ) 1:11-cv-00024; M.D.N.C.

Holding: Defendants responded to a domestic disturbance call and found plaintiff in a tree stand 15 feet off the ground. According to defendants, plaintiff threatened to cut his wrists, so defendants tased him, and plaintiff then jumped off the tree stand. According to other witnesses, plaintiff did not have a knife, and he fell as a result of being tased. The court is not required to disregard the other witnesses’ statements in determining the proximate cause of plaintiff’s injury.

The court should deny defendants’ motion for summary judgment.

“Where an officer is faced with a split-second decision in the context of a volatile atmosphere about how to restrain a suspect who is dangerous, who has been recently — and potentially still is — armed, and who is coming towards the officer despite officers’ commands to halt,” the court in Sigman v. Town of Chapel Hill, 161 F.3d 782 (4th Cir. 1998), concluded that “the officer’s decision to fire [was] not unreasonable.”

The reasoning in Sigman does not answer the question of whether, to resolve defendants’ summary judgment motion, the court must consider only evidence from the parties themselves in determining whether a material question of fact exists regarding whether plaintiff fell or jumped from the tree stand. The court in Sigman addressed the relevance, for summary judgment purposes, of evidence as to events that preceded an officer’s use of force. Here, the question of whether plaintiff jumped or fell from the tree stand involves a matter of historical fact subsequent to the decision to use force. This distinction renders Sigman inapposite on this particular issue.

When viewed in the light most favorable to plaintiff, a material factual dispute exists as to whether he voluntarily jumped from the stand, which the court cannot resolve in the context of a summary judgment motion.

In determining whether defendants used excessive force, the court must balance the government interest in seizing plaintiff against the amount of force used.

The parties contest whether plaintiff posed a threat to himself. The court cannot find as a matter of law that the government interest in using force against plaintiff was other than very low, because plaintiff posed no threat to the officers or the public, did not actively resist seizure, and (viewing the evidence in the light most favorable to him) neither made statements nor exhibited conduct that indicated suicidal intent. At most, the record (again, if construed inplaintiff’s favor) requires the court to credit, as a basis for any concern by defendants for plaintiff’s safety, only the fact that he recently had a domestic row, took some prescription medicine, and declined to come down from a tree stand.  Knowledge of these facts simply does not establish as a matter of law that a reasonable officer would perceive a grave threat of suicide.

As to the level of force used against plaintiff, a TASER inflicts a painful and frightening blow, which temporarily paralyzes the large muscles of the body, rendering the victim helpless. Orem v. Rephann, 523 F.3d 442 (4^th Cir. 2008). The injury from a TASER does not qualify as de minimis. Furthermore, in assessing the intrusion caused by a use of force, courts have considered indirect injuries that result.

Viewing the evidence in the light most favorable to plaintiff, a reasonable factfinder could conclude that Deputy Thomas’s use of a TASER, particularly on an individual positioned, like plaintiff, on a small elevated platform, was unreasonable and therefore excessive in light of the minimal interest underlying the seizure.

Even if defendants reasonably perceived plaintiff as having threatened self-injury with a knife, a factfinder could conclude that the instant TASER deployment represented an unreasonable use of force. “It would be odd to permit officers to use force capable of causing serious injury or death in an effort to prevent the possibility that an individual might attempt to harm only himself.” Glenn v. Washington Cnty., 673 F.3d 864 (9th Cir. 2011).

Accepting that law enforcement officers generally may use force to prevent an individual from engaging in self-harm, the level of such force may not exceed that reasonably warranted by any particular situation. A TASER deployment constitutes a significant intrusion upon an individual. Furthermore, plaintiff was perched on a small platform 15 feet in the air at the time of the TASER deployment. A factfinder could conclude that a reasonable officer would foresee that using a TASER under such circumstances could cause the targeted individual to fall and thereby to suffer serious harm, indeed, more serious harm than cuts to a wrist with a Swiss Army knife.

The court should deny defendants’ summary judgment motion.