Tort/Negligence – Excessive Force – Taser — Public Official Immunity – Malicious Prosecution — Constitutional

DeBaun v. Kuszaj (Lawyers Weekly No. 13-16-0807, 20 pp.) (Ann Marie Calabria, J.) Appealed from Durham County Superior Court (Orlando F. Hudson Jr., J.) N.C. App. Unpub.

Holding: A product warning accompanying the defendant-police officer’s taser says that “loss of control [as a result of taser probe deployment] can in some circumstances increase the risks of serious injury or death resulting from the loss of balance [or] falls…. Especially at risk are persons: … Who are running”; nevertheless, the defendant-city’s police department only prohibits using tasers on elderly persons, pregnant women, visibly frail persons, any person who is in control of a vehicle in motion, or any person who is in a position which creates the likelihood for additional injury other than those created by the effects of the taser. Thus, there was no evidence that the officer was aware that his use of a taser on plaintiff – as he was running away on a sidewalk – was likely to injure him. Plaintiff failed to show that the officer actually or constructively intended to injure him; therefore, the officer is protected by public official immunity.

We affirm summary judgment for defendants.

The officer saw plaintiff standing or walking in the turn lane of a public street, attempting to cross the street while carrying a 12-pack of beer and waving his arms at traffic. The officer testified in his deposition that plaintiff appeared unsteady on his feet, and plaintiff admitted to having consumed eight to 12 beers prior to his encounter with the officer. Plaintiff’s undisputed behavior was sufficient to induce a reasonably prudent person to suspect that he was guilty of the offense of drunk and disorderly conduct under G.S. § 14-444(a).

The officer testified that he tried to restrain plaintiff by placing him in custody for his own protection, at which time plaintiff ran away. Plaintiff’s conduct was sufficient to induce a reasonably prudent man to believe that plaintiff was guilty of resisting an officer pursuing his lawful duties pursuant to G.S. § 122C-301.

Since there was probable cause for plaintiff’s arrest, plaintiff cannot make out a claim of malicious prosecution.

No N.C. cases have determined the level of force which a law enforcement officer attempting to assist an intoxicated individual under § 122C-301(b) may reasonably use. However, the question of whether a law enforcement officer has used excessive force against a civilian is judged by a standard of objective reasonableness.

A taser can be considered a dangerous weapon, depending on the circumstances of its use.

Given the officer’s training and the product warning accompanying the taser, plaintiff’s forecast of evidence was sufficient to create genuine issues of material fact regarding his excessive force claim. There was a question of fact as to whether the officer’s use of a taser to stop plaintiff while he was running on a concrete sidewalk, for purposes of placing plaintiff in protective custody, constituted unreasonable and excessive force. Therefore, the trial court erred when it granted defendants’ motion for summary judgment on plaintiff’s excessive force claim on the basis of insufficiency of the forecast of the evidence.

Since we have determined genuine issues of material fact existed regarding whether the officer’s deployment of the taser constituted unreasonable and excessive force, it follows that genuine issues of material fact also exist with respect to plaintiff’s assault and battery claim.

However, the officer is entitled to public official immunity. Plaintiff has not alleged that the officer’s actions were corrupt or outside the scope of his authority; thus, the only relevant exception to public official immunity is malice. In the context of public official immunity, a defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another.

The police department’s General Order 4008 R-3, which governs the use of force, does not explicitly prohibit using a taser on a fleeing subject. In his deposition testimony, plaintiff’s expert Dave Cloutier acknowledged that “Officer Kuszaj may have reasonably believed, based on his training, that he could have utilized a taser in that situation.” There was no evidence presented that the officer was aware that his use of his taser on plaintiff was likely to injure him.

Based on his training and experience, the officer could not be said to have either actually or constructively intended to injure plaintiff by his use of his taser. Therefore, the officer’s actions during his interaction with plaintiff were protected from liability by the doctrine of public official immunity.

Because plaintiff can seek a remedy for his alleged injury through claims of assault and battery, use of excessive force, and malicious prosecution, he cannot bring a cause of action under the N.C. Constitution against either the city or the officer in his official capacity. The fact that plaintiff must overcome the affirmative defense of public officer immunity to succeed on his tort claims does not negate their adequacy as a channel through which plaintiff could seek relief.

Affirmed.