On August 26, 2022, a federal jury awarded a plaintiff $100 million after he became paralyzed following an encounter with an Atlanta Police Officer in July 2018. The then 65-year-old plaintiff was observed by an officer standing in a roadway apparently asking motorists for money—a misdemeanor crime. The officer initiated a contact with the plaintiff and after telling him to stop, the plaintiff failed to follow the order and moved out of the roadway into a wooded area. The officer gave pursuit on foot. The officer then deployed his Taser into the plaintiff’s back, causing the plaintiff to fall forward into a concrete surface resulting in severe personal injuries. The plaintiff sued in federal court alleging a violation of his civil rights through excessive force.
Unique to police use of force cases is the use of “intermediate weapons” such as the Taser. A Taser is a “conducted energy weapon” and has several functions, one of which includes shooting darts or probes into a subject from a distance in order to gain physical control of that subject. According to Taser: “In probe-deployment mode, TASER energy weapons are designed to temporarily incapacitate a person from a safe distance while reducing the likelihood of serious injuries or death. When used as directed, TASER energy weapons have been found to be safer and more effective than other traditional use-of-force tools and techniques. However, it is important to remember that the use of force and physical incapacitation, by their very nature, involve risk that someone will get hurt or may even die...”
Courts have generally held that in order for a Taser probe deployment to be objectively reasonable, the subject must be actively resisting the officer. Active resistance does not have a precise definition and requires an intense factual review of all circumstances surrounding the incident. Ordinarily, active resistance would come through physical force to avoid being arrested or controlled, such as pushing or pulling away from the officer’s grasp, or through attempts to physically harm the officer through force or violence. However, active resistance is not limited to just these actions and may include failure to follow an officer’s orders—particularly when facing a threat from the suspect.
To prevail on a federal excessive force claim, the plaintiff must show that a police officer was acting under the color of law and that the plaintiff received an injury due to use of an unreasonable amount of force. In the seminal case of Graham v. Connor, 490 U.S. 386 (1989), the United States Supreme Court established the standard of review of an officer’s use of force in response to a subject’s resistive behavior as one of objective reasonableness. In other words, the question to be answered by the jury is whether a reasonable police officer in the same situation would have used a similar amount of force. It must be noted that officers are not required to use the least amount of force available, so long as the force option used was reasonable under the circumstances.
The Graham Court set forth the following factors to assist in this review: (1) the severity of the crime; (2) the immediacy of the threat to the officer; and (3) whether the suspect is actively resisting arrest and/or the suspect is evading arrest by flight. Not all factors are required to allow for the use of force, but each must be considered together under the specific circumstances of an individual case to determine if probable cause existed to use force at all, and to weigh the amount of force used against the subject’s resistive behavior. As applied in this case, the Judge stated in his reasons allowing the case to proceed to the jury: “The record would allow the jury to find that [the plaintiff] had not been committing a serious crime before he was tased, that [the officer] did not fear for his safety, and that the exigent circumstances were not otherwise so severe as to permit [the officer’s] use of force…”
The facts of this case indicate that the officer likely had the required reasonable suspicion to conduct a brief detention of the plaintiff for investigative purposes. Although the crime was misdemeanor, the officer was well within the law pursuant to Terry v. Ohio, 392 U.S. 1 (1968), to stop the plaintiff and complete an investigation into his actions. Thus, the plaintiff was not free to leave. The plaintiff did not follow the initial orders and walked away from the officer anyway. In such a case, the officer could use some amount of force to detain the plaintiff to achieve his lawful purpose. However, the key question is how much force is reasonable?
Determining whether the force used to effect a particular seizure is reasonable requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake. The government interest in the arrest of a suspected panhandler is relatively low versus the risks of injury created by a Taser probe deployment of a standing subject, who is effectively incapable of controlling a fall to the ground once incapacitated.
Of the Graham factors, the immediacy of the threat to the officer often controls the sometimes less salient factors and is closely related to a subject’s resistive behavior. Even with the low-level misdemeanor offense, if the plaintiff posed a credible and immediate threat to the officer’s safety, the officer could escalate the amount of force used to protect himself from the threat or gain control of the subject. For a threat to be immediate, the subject must have the means, opportunity, and intent to carry it out. There are few facts known here other than the suspect was facing away from the officer and not following orders. Under these circumstances, articulating an immediate threat that gives rise to use of a Taser probe deployment seems unlikely barring mere speculation. Thus, it could reasonably be found by a jury that the force was more than necessary to overcome the faced passive resistance—or in other words, excessive in nature.
The nature and extent of the injuries to the plaintiff in this case are extensive and the verdict reflects amounts of money that arguably are in proportion to the harms and losses sustained. In order to reach this decision, the jury was required to find the officer’s force option unreasonable. This is no easy task in application. However, despite the challenge, the touchstone of a Fourth Amendment analysis is reasonableness as defined by the expectations of society. In the civil justice system, the jury is the voice of society. Verdicts such as this cannot be ignored by law enforcement policy makers and trainers. What once was common police practice and deemed reasonable, may no longer be the standard. We must take note and correct accordingly.