Updated: May 3, 2022
The United States Fifth Circuit Court of Appeals recently addressed a lower court’s decision that a police officer was not entitled to qualified immunity when he deployed his taser one time to arrest a suspect on a traffic stop. During the stop, the suspect repeatedly challenged the officer’s reasons for stopping him, refused to comply with his orders, batted his hand away, called him a liar, warned him to call in backup, and dared him to use his taser. After several minutes, the officer tased the suspect once and arrested him. The suspect pled guilty to resisting arrest but then sued the officer for using excessive force under 42 USC 1983. The district court found that the suspect was “at most, passively resisting” in its decision to deny qualified immunity.
In review of taser-related cases, the 5th Circuit has traditionally paid particular attention to whether the officer faced active or passive resistance. This determination is not easily made and is necessarily fact intensive. Notably, active resistance does not require a physical confrontation with the officer. In deciding the officer’s actions were reasonable in this case, the Court analyzed the timing of the encounter and noted that the officer first attempted to use physical control, negotiations, warnings, and commands, to which the suspect did not comply. The officer then deployed the taser only one time and stopped using force once the suspect was taken into custody. Accordingly, the lower court’s decision denying qualified immunity was reversed.
§1983 excessive force suits can be complex and difficult due to strict legal standards. Moreover, understanding the interplay between law enforcement officers’ actions in response to resistance and the legal standards of active versus passive resistance creates even more of a challenge for counsel. CCG provides expert consulting services that can help bridge the gap between the legal formalities and the practical aspects of use of force encounters that sometimes seems miles apart. Contact us today for a free case consultation.