Civil Rights – Excessive Force Claim – Taser – Resisting Arrest Conviction – Second Encounter – Constitutional – Fourth Amendment

Boswell v. Bullock (Lawyers Weekly No. 12-02-0786, 29 pp.) (James C. Fox, Sr.J.) 5:11-cv-00094; E.D.N.C.

Holding: Even though plaintiff was convicted of resisting arrest, the judge could have based the conviction on plaintiff’s first encounter with Officer Bullock, when plaintiff ran away, rather than on the second encounter, when plaintiff was on his way to turn himself in and Bullock tased him. Therefore, the conviction does not bar plaintiff’s excessive force claim.

Defendants’ summary judgment motion is denied as to plaintiff’s claims against Bullock in his individual capacity. The motion is granted as to plaintiff’s municipal liability claims.

Facts

The facts are set out in the light most favorable to plaintiff.

After a long drive, the plaintiff-truck driver parked in his usual place and began the half-mile walk to his fiancee’s apartment at 12:45 a.m. on Jan. 23, 2009.

From his patrol car, Officer Bullock asked plaintiff where he was going. When plaintiff didn’t answer, Bullock threatened to shoot him. Plaintiff stopped, and Bullock asked who he was and where he was going. Plaintiff told Bullock his name and said that Bullock had driven by plaintiff’s truck while plaintiff was still in it. Plaintiff was mistaken; another officer had driven by plaintiff’s truck. After plaintiff told Bullock that he was going to his fiancee’s apartment, he turned to leave, but Bullock attempted to place plaintiff under arrest for disturbing the peace. Plaintiff ran to his fiancee’s apartment.

Plaintiff told his fiancée what had happened and called the police department. Plaintiff’s fiancée was driving him to the police department so he could turn himself in when Bullock pulled her over. Bullock ordered plaintiff out of the car. As soon as plaintiff stood up, Bullock tased him. Once plaintiff was on the ground, Bullock tased him again.

Plaintiff was convicted of resisting arrest and did not appeal.

Prior Conviction

A claim under 42 U.S.C. § 1983 is barred if its success would imply that the plaintiff’s prior conviction was invalid. However, a person convicted of resisting arrest is not per se barred from bringing a § 1983 action for excessive force arising from the same interaction, as long as success on the § 1983 action does not undermine the validity of the criminal conviction.

In plaintiff’s case, the district judge heard evidence of both encounters between plaintiff and Bullock. If the district judge believed Bullock’s version of the first encounter — that Plaintiff ignored Bullock’s instructions to stop running, and “took a swing” at him — that alone would be enough to sustain the conviction for resisting, delaying or obstructing a police officer. The evidence of plaintiff s second encounter with Bullock would not be necessary to support the conviction.

Bullock’s firing of his taser during the second encounter is distinct from the first encounter. Given that there is no indication in the record whether the state district court based its conviction on plaintiff’s actions in the first encounter, second encounter, or both, the court cannot find that plaintiff’s excessive force claims — which only concern Bullock’s actions in the second encounter — necessarily imply that plaintiff’s conviction is invalid. Moreover, a state court’s finding that a plaintiff resisted a lawful arrest may coexist with a finding that the police officer’s used excessive force to subdue him because a jury could find that the police officers effectuated a lawful arrest of the plaintiff in an unlawful manner.

Accordingly, plaintiff’s conviction does not bar his § 1983 excessive force claims against Bullock.

Excessive Force

A claim of excessive force by a law enforcement officer implicates the constitutional rights of an individual to be free from unreasonable search and seizure under the Fourth Amendment.

Taking the facts in the light most favorable to plaintiff, the court cannot say that Bullock’s use of the taser was objectively reasonable as a matter of law. Plaintiff did flee from Officer Bullock when, under plaintiff s version of the facts,

Bullock attempted to place him under arrest. This is a crime under N.C. law.

However, plaintiff cannot be said to have been “actively resisting seizure or evading seizure by flight” at the time Bullock first used the taser. Crediting plaintiff’s version of the facts, Bullock instructed plaintiff one time to exit the car, plaintiff did so, and Bullock immediately deployed the taser upon plaintiff.  Bullock deployed the taser without a verbal warning despite the fact that plaintiff was complying with his express instruction.

Nor can the court find that plaintiff’s action in exiting the car — at Bullock’s behest — constituted a threat or resistance. Bullock makes much of the fact that the car door almost hit him when plaintiff opened it, and contends that plaintiff exited the car in an “aggressive and threatening manner” and “appeared to be … squaring off with his chest as if he wanted to fight me.” The patrol car video, however, reveals that Bullock was standing with his arm extended such that the taser and his hand were within what looks to be one foot of the car door. It was not reasonable, then, to perceive the closeness of the car door upon opening as a threat, especially since another officer was on the scene.

Moreover, the video does not support Bullock’s recollection that plaintiff “squared off” toward him. A reasonable jury could find that Bullock’s first use of the taser constituted excessive force.

Further, the court cannot say that Bullock’s second use of the taser was objectively reasonable as a matter of law. Again, under plaintiff s version of the facts, after he fell to the ground, he yelled, “Where do you want my hands at?” It is not apparent how this action could be interpreted as either resistance or a threat to Bullock, especially when another officer was present.

Accordingly, the court finds that plaintiff has proffered sufficient evidence from which a reasonable jury could conclude that Bullock’s use of the taser against plaintiff was excessive.

When this incident occurred, it was clear to a reasonable officer that it was unlawful to deploy a taser upon a suspect who was no longer resisting arrest and was complying with the officer’s directive. Although the Fourth Circuit only has addressed the use of a taser on one occasion, it still was clear in 2009 that one has a right to be free from physical force — whether it be via a taser or otherwise — when one is not resisting the police. Accordingly, Bullock is not entitled to qualified immunity.

Municipal Liability

Plaintiff has put forward no evidence that an express policy of the defendant-city led to Bullock violating plaintiff’s constitutional rights, that the city engaged in a practice or custom of condoning or encouraging the use of unconstitutional force, or that the city showed deliberate indifference to plaintiff’s rights.

The city’s police department meets the state’s mandated yearly training requirements regarding use of force, and its officers are certified on a yearly basis to use tasers. There is no evidence suggesting that this training or supervision is deficient. Plaintiff has failed to proffer any evidence supporting his claim for municipal liability under § 1983.

State Law Claims

The evidence in support of plaintiff’s excessive force claim also supports his assault, battery, gross negligence, and punitive damages claims against Bullock.

Plaintiff has failed to show negligence on the part of the city.

Motion granted as to the city, denied as to Bullock in his individual capacity.