Fourth Circuit warns police officers about using Tasers on resisting subjects

The 4th U.S. Circuit Court of Appeals has put police officers on notice when it comes to using Taser stun guns as a pain compliance tool on a resisting subject. Unless officers can demonstrate that the subject poses an “immediate danger,” the court determined using a Taser on a non-compliant individual would run afoul of the Fourth Amendment.

The case has already prompted warnings to law enforcement officers in North Carolina about the new standard with regard to Taser use.

The 4th Circuit’s finding came in a Jan. 11 opinion in Estate of Ronald Armstrong v. Village of Pinehurst. The court’s ruling upheld a lower court’s decision to grant summary judgment in favor of three North Carolina police officers who employed Tasers while trying to execute an involuntary commitment order against Armstrong, who was suffering from bipolar disorder and paranoid schizophrenia.

Ronald Armstrong died during the course of the officers’ attempt to apprehend him, prompting his family to sue the officers for alleged violations of his civil rights. The lawsuit was initially filed in Moore County Superior Court before being moved to the federal court in Greensboro, North Carolina.

The underlying case stemmed from a 2011 incident in which Armstrong was brought to Moore Regional Hospital in Pinehurst, North Carolina, after his sister became worried by his behavior. Armstrong had been off his prescribed medication for five days and had begun to poke holes in the skin of his leg to “let the air out,” court records say. After being examined by a doctor, Armstrong became frightened and left the medical facility.

The examining doctor judged Armstrong to be a danger to himself and issued an involuntary commitment order. The Pinehurst police were called to apprehend him.

When police arrived, Armstrong was allegedly wandering across an active roadway. The officers convinced him to return to the roadside, where he grabbed onto a wooden signpost. The officers then attempted to remove him from the signpost after receiving word that the involuntary commitment order had been finalized. When Armstrong would not let go of the signpost, one of the officers drew his Taser, set it to “drive-stun mode” and deployed it several times over a two-minute period. The exact number of times the Taser was deployed is in question.

Court records say Tasers generally have two modes. In dart mode, the device fires probes into an individual which can override his or her central nervous system. In drive-stun mode, the device is used as a pain compliance tool but does not cause an override of the individual’s central nervous system.

When Armstrong was eventually removed from the signpost, court records say the police officers pinned him to the ground by placing a knee into his back while they handcuffed his hands behind his back and restrained his legs. Shortly thereafter, Armstrong became unresponsive and was ultimately pronounced dead at the hospital.

At the trial level, the district court granted summary judgment to the officers, finding that it was doubtful their conduct amounted to a constitutional violation of Armstrong’s Fourth and Fourteenth Amendment rights. The trial judge also said the officers were entitled to qualified immunity.

After hearing an appeal from Armstrong’s estate, the 4th Circuit upheld the district court’s finding that the officers should receive qualified immunity because existing case law was not clear on whether their use of a Taser was justified. But the appellate court said the police officers had used unconstitutionally excessive force when seizing Armstrong because he was not suspected of committing any crime and was being apprehended in an effort to keep a mentally ill individual from harming himself.

Writing for the three-judge panel, Judge Stephanie Thacker said the court’s opinion was designed to clarify when the use of a Taser amounts to excessive force.

“Where, during the course of seizing an out-numbered mentally ill individual who is a danger only to himself, police officers choose to deploy a Taser in the face of a stationary and non-violent resistance to being handcuffed, those officers use unreasonably excessive force,” Thacker said, adding that the finding applied to Tasers in both dart mode and drive-stun mode.

Going forward, Thacker said, using a Taser on a resisting individual would violate the Fourth Amendment, unless the individual poses an “immediate danger.” Thacker was joined by Judge Barbara Keenan.

In a separate concurring opinion, Judge J. Harvie Wilkinson III said the majority overstepped by taking on the constitutional questions in the Armstrong estate’s appeal, rather than limiting their opinion to whether the officers were entitled to qualified immunity.

“Delivering vague proclamations about do’s and don’ts runs the risk of incentivizing officers to take no action, and in doing so to leave individuals and their prospective victims to their unhappy fates,” Wilkinson said.

Shortly after the 4th Circuit handed down the opinion, the North Carolina Justice Academy issued a statewide advisory notice to all sheriffs, police chiefs, trainers, school directors and supervisors, warning them of the new standard with regard to Taser use. The N.C. Justice Academy trains law enforcement officers across North Carolina.

“Effective immediately, Taser use as a pain compliance tool against a resisting subject is prohibited by the Fourth Amendment unless the police can articulate ‘immediate danger’ to the officer apart from the fact of resistance alone,” the notice said.

The N.C. Justice Academy referred comments to the N.C. Department of Justice. A NCDOJ spokeswoman was not immediately available for comment.

Karonnie R. Truzy, an attorney with Crumley Roberts who represented the Armstrong estate on appeal, said he was pleased that the 4th Circuit’s decision clarified when it is acceptable for law enforcement to use a Taser on a non-compliant individual, even if the court did not rule in favor of his client.

“This is very exciting because our circuit in particular had not made a bright line for individuals about what their rights are,” Truzy said. “The court said it is not OK to use a Taser on an individual who poses no threat. You’d think that was common sense, but it wasn’t clear before.”

Truzy said his clients have not decided whether to file for en banc review of the panel’s decision or if they will seek an appeal to the U.S. Supreme Court.

Dan Hartzog Jr. of the Raleigh office of Cranfill Sumner & Hartzog, who represented the officers on appeal, declined to comment on the case.

But other attorneys in the 4th Circuit said they found the finding troubling.

Tim Domin of Charleston, South Carolina’s Clawson & Staubes, has represented municipalities and police officers in cases alleging excessive use of force. He said the 4th Circuit’s opinion could increase the danger police officers face when they go to arrest an individual.

“If you take away Tasers as a tool for officers to use when apprehending an individual, who they may or may not know poses an immediate danger, you’re forcing officers to go flesh-to-flesh with someone who is already demonstrating they are not going to comply,” Domin said. “That greatly increases the chance that either the officers or the individual are going to be seriously hurt.”

Follow Jeff Jeffrey on Twitter @NCLWJeffrey