Civil Rights – No Immunity for Traffic-Stop Triple Taser Use

Yates v. Terry (Lawyers Weekly No. 001-063-16, 21 pp.) (Biggs, J.) No. 15-1555, March 31, 2016; USDC at Charleston, S.C. (Houck, J.) 4th Cir.

Holding: A first sergeant and Iraq war veteran who allegedly was ordered out of his car and tased three times over not having his driver’s license, after offering his military identification to the officer, has established excessive force in violation of plaintiff’s clearly established Fourth Amendment rights, and the 4th Circuit affirms denial of qualified immunity to the officer in plaintiff’s suit under 42 U.S.C. § 1983.

Although the district court used conflicting language in explaining its reasoning for holding that qualified immunity did not apply in this case, it is clear the court did apply the analysis in Saucier v. Katz, 533 U.S. 194 (2001), to the first two deployments of the taser and concluded they constituted unreasonable force and a constitutional violation which was well established. Although the court concluded further factual development was needed before it could determine whether qualified immunity applied to the third taser deployment, we nevertheless conclude we have jurisdiction in this appeal.

Viewing the facts in the light most favorable to plaintiff, we conclude the factors enunciated in Graham v. Connor, 490 U.S. 386 (1989), weigh heavily in plaintiff’s favor. While we accept plaintiff’s position that he committed no traffic violations before being stopped by defendant, even if he had committed the violations alleged by defendant, it is undisputed that these alleged violations are nonviolent, minor traffic infractions – playing loud music in violation of a noise ordinance, changing lanes without a signal light and crossing a double yellow line. The driving without a license offense that was the basis for defendant initially detaining plaintiff constitutes only a misdemeanor under South Carolina law.

Further, the evidence shows that plaintiff, who was unarmed, complied with the officer’s orders to place his hands on the car before the officer tased him for turning his head. After this taser application, plaintiff fell to the ground where he remained when the officer tased him a second time for no apparent reason. Although plaintiff reached for his cell phone before being tased a third time, plaintiff’s brother testified that the officer let plaintiff slide him the phone and knew plaintiff was giving his brother the phone to call plaintiff’s commanding officer.

This is not a case where the initial use of force was justifiable because the suspect had a weapon or was acting erratically, and the continued use of such force was unlawful because the threat was eliminated. Viewing the evidence in plaintiff’s favor, it does not support an inference that plaintiff was a danger at any time during their encounter.

Again, viewing the evidence in plaintiff’s favor, he never attempted to get up after he fell to the ground following the first taser application as asserted by the officer. Nor did the officer warn plaintiff that he would be tased or that he could not move any part of his body.

We conclude such force was not objectively reasonable in light of the totality of the circumstances in this case.

Finally, it was clearly established in 2008 that a police officer was not entitled to use unnecessary, gratuitous or disproportionate force by repeatedly tasing a nonviolent misdemeanant who presented no threat to the safety of the officer or the public and who was compliant and not actively resisting arrest or fleeing.

Viewing the facts in plaintiff’s favor, no reasonable officer would have believed defendant’s use of the taser was justifiable at all and certainly not on three occasions.

Denial of summary judgment affirmed.