DON’T TASE ME BRO:
A LACK OF JURISDICTIONAL CONSENSUS
ACROSS CIRCUIT LINES
BAILEY JENNIFER WOOLFSTEAD*
ABSTRACT
Electronic control devices (ECDs), barely known a decade ago,
currently enjoy unprecedented and widespread use. Federal agencies
are beginning to incorporate ECDs into their agents’ arsenals, and
the number of cases alleging that an officer’s use of an ECD
constituted excessive force has skyrocketed. The twelve federal
circuits are currently split on ECD use and excessive force. These
courts disagree on what level of force ECDs constitute, whether
courts should distinguish between dart-stun mode and drive-stun
mode, and how to apply the tests in Graham v. Connor and Saucier v.
Katz to determine whether an officer violated a suspect’s Fourth
Amendment rights by using excessive force and whether that officer is
entitled to qualified immunity. As a result, federal officers often do
not know when they can use ECDs without violating a person’s
constitutional rights. In addition, improperly tased suspects are
effectively barred from recovery under 42 U.S.C. § 1983 and Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics. This
Article briefly overviews the history of the electronic control device
weapon, reviews how federal courts determine excessive force claims
and qualified immunity, and then examines the twelve circuits to
show the disparity in how the courts treat ECD-related claims. This
Article concludes that the Supreme Court should determine what
level of force Tasers constitute.
* Law Clerk to the Honorable Frank A. Pfiffner, Alaska Superior Court; J.D.
William & Mary School of Law, 2012; B.A. New York University, 2007. The
author would like to thank William Van Alstyne, Sophia Chase, and Brittany Mills
for their insightful comments throughout the editing process, as well as Jay
Woolfstead, Debby Kirshen, and Hilda Kirshen, for their never-ending support.
The author would also like to thank the staff of the Thomas M. Cooley Law
Review for their editorial comments. The views expressed in this Article are those
of the author alone and do not necessarily represent the views of, and should not be
attributed to, the Alaska Court System.
286
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
TABLE OF CONTENTS
INTRODUCTION .................................................................................286
I. LAW ENFORCEMENT USE OF FORCE ..............................................287
A. Excessive Force Claims ....................................................287
B. Less-Than-Lethal Force and the
Use-of-Force Continuum ..................................................288
C. Tasers ................................................................................291
i. Taser Overview and Use ..............................................291
ii. Taser Regulation .........................................................294
iii. Prevalence of Taser Use .............................................295
II. FEDERAL LAW ..............................................................................297
A. The Fourth Amendment and
Excessive Force Analysis..................................................298
B. 42 U.S.C. § 1983 ...............................................................299
C. Claims under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics .............................................300
D. Qualified Immunity ...........................................................301
III. THE CIRCUITS ARE SPLIT ON WHAT FORCE
TASERS CONSTITUTE .................................................................303
A. First Circuit ......................................................................304
B. Second Circuit ...................................................................305
C. Third Circuit .....................................................................306
D. Fourth Circuit ...................................................................307
E. Fifth Circuit ......................................................................309
F. Sixth Circuit ......................................................................311
G. Seventh Circuit .................................................................315
H. Eighth Circuit ...................................................................316
I. Ninth Circuit ......................................................................317
J. Tenth Circuit ......................................................................322
K. Eleventh Circuit ................................................................323
L. District of Columbia Circuit .............................................324
CONCLUSION ...................................................................................324
INTRODUCTION
Law enforcement officers, whether federal or state, are the only
members of society authorized to use deadly force.1 They are the
1. MICHAEL E. MILLER, POLICE TASER UTILIZATION: THE EFFECT OF POLICY
CHANGE 1 (Marilyn McShane & Frank P. Williams III, eds., 2010) [hereinafter
MILLER, POLICE TASER UTILIZATION].
2012]
DON’T TASE ME BRO
287
most conspicuous government presence in our daily lives on both a
local and national level.2 Police and federal agents have a substantial
level of discretion in the manner in which they deal with the public at
large.3 Despite their ability to wield immense power, law
enforcement officers have a considerable interest in using less-thanlethal force to diffuse dangerous or deadly situations. If law
enforcement officers abuse their power by using excessive force, a
citizen’s only recourse is a constitutional tort claim under either 42
U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics.4
The first step in determining liability in an excessive force claim
is to determine whether force was used. While use of, and lawsuits
based on, electronic control devices (ECDs, Tasers, or stun guns)
have increased dramatically in recent years, there is no legal
consensus on what level of force the use of a Taser constitutes. Most
circuit courts are split on the issue, and this poses a particular
problem for federal law enforcement agents who carry ECDs and
must cross jurisdictional lines in the course of their law enforcement
duties. A small number of circuits and the Supreme Court of the
United States have not yet addressed the issue.
The failure to have a legal consensus harms law enforcement
officers because it impedes their ability to utilize all the tools at their
disposal. It also harms the victims of an unconstitutional excessive
force allegation because their legal remedy is tenuous at best.
I. LAW ENFORCEMENT USE OF FORCE
A. Excessive Force Claims
The Fourth Amendment protects individuals from unreasonable
searches and seizures.5 In Graham v. Connor, the Supreme Court of
the United States ruled that excessive force by police officers “in the
course of making an arrest, [or] investigatory stop” constitutes a
seizure under the Fourth Amendment.6 This (r)evolution in
2. See id.
3. See, e.g., Michael E. Miller, Taser Use and the Use-of-Force Continuum:
Examining the Effect of Policy Change, THE POLICE CHIEF, Sept. 2010, at 72
[hereinafter Miller, Taser Use and the Use-of-Force Continuum].
4. See 42 U.S.C.A. § 1983 (Westlaw 2013); 403 U.S. 388 (1971).
5. U.S. CONST. amend. IV.
6. 490 U.S. 386, 388 (1989).
288
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
constitutional law dramatically altered the legal landscape for
excessive force claims from the previously followed standard in
Johnson v. Glick, which analyzed excessive force claims under the
substantive due process protections of the Fourteenth Amendment.7
Excessive force claims fill the courts and have garnered much
attention over the years. One of the most notorious cases in recent
history involved Rodney King, a black man who led California
Highway Patrol officers on a high-speed chase down a Los Angeles
freeway. King was brutally beaten by four white officers, who used
Tasers and batons.8 A nearby citizen recorded the incident and leaked
the video to news stations.9 The acquittal of the four officers, who
were charged with using excessive force under § 1983, was the
impetus for the Los Angeles riots, “the worst single episode of urban
unrest in American history, which . . . left 53 people dead and
[caused] $1 billion in damage.”10 More recently, Andrew Meyer, a
student at the University of Florida, was tased by security at an oncampus address from then-presidential candidate John Kerry.11
Meyer asked a question about Kerry’s participation in Yale’s
infamous Skull and Bones Society and was immediately escorted
away from the microphone by campus security. Meyers resisted
arrest and was tased in drive-stun mode by University Police. His
tasing was also caught on videotape; the YouTube clip went viral
introducing the meme “don’t tase me bro” to the American popcultural lexicon.12
B. Less-Than-Lethal Force and the Use-of-Force Continuum
Most local police and federal agents carry guns. But use of a
firearm would be an overreaction in most situations where police
7. 481 F.2d 1028, 1031 (2d Cir. 1973) (quoting Rosenberg v. Martin, 478 F.2d
520, 526 (2d Cir. 1973)); see also infra Part II.A (discussing the Fourth
Amendment’s excessive-force analysis).
8. Madison Gray, The L.A. Riots: 15 Years After Rodney King, TIME,
http://www.time.com/time/specials/2007/la_riot/article/0,28804,1614084_1614084,
00.html (last visited Mar. 16, 2013).
9. Id.
10. Id. at 2.
11. Monica Hesse, Aiming to Agitate, Florida Student Got a Shock, WASH.
POST (Sept. 19, 2008), available at http://www.washingtonpost.com/wpdyn/content/article/2007/09/18/AR2007091802115.html.
12. See, e.g., id.
2012]
DON’T TASE ME BRO
289
officers need to use some level of force to gain compliance. Over the
years, law enforcement technology has advanced; therefore, police
officers have an array of less-than-lethal alternatives to use, such as
pepper spray, batons, ECDs, and weaponless tactics, like paincompliance techniques. ECDs, in particular, have been used by local
police departments since the 1970s.13 Law enforcement actions in
using force are instructed by a number of guidelines, which include
federal and state statutory law; federal and state case law; individual
state standards and training; and individual departmental guidelines
and training. Thus, the level of training and guidelines depend on the
location and unit of the officer or agent. But as a whole, use of
force—particularly with respect to ECDs—is completely
unregulated, except through excessive force jurisprudence.
Law enforcement’s use of force is not taken lightly; however,
officers and agents are often required to make split-second decisions
as to whether force is necessary and to what extent, especially in the
face of “tense, uncertain, and rapidly evolving” situations.14 The most
common method of determining when the use of force is appropriate
and what force should be used is based on a model known as the Useof-Force Continuum.15 Every department’s Use-of-Force Continuum
varies; yet, most involve five stages of subject action with a corollary
officer perception and response that flows from each stage.16 The
Department of Homeland Security Federal Law Enforcement
Training Center’s Use-of-Force Continuum provides a useful
example of the five different categories of subject action, officer
perception, and officer response.
13. See MILLER, POLICE TASER UTILIZATION, supra note 1, at 8.
14. See Parker v. Gerrish, 547 F.3d 1, 9 (1st Cir. 2008).
15. See Charles R. Epp, Implementing the Rights Revolution: Repeat Players
and the Interpretation of Diffuse Legal Messages, 71 LAW & CONTEMP. PROBS. 41,
42 (2008).
16. See infra Figure 1.
290
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
Figure 1: Use-of-Force Continuum17
Under the Use-of-Force Continuum, compliance (also categorized
as mere presence) merits cooperative controls such as voice
commands. At the first stage, any use of force is unnecessary because
the subject engages with a law enforcement officer and follows any
instructions given. Passive resistance, the second stage, occurs when
a subject refuses to acquiesce to verbal commands, which prevents
the officer from taking lawful action.18 This is the earliest stage that
police protocol allows the use of an ECD, but most departments
forbid it.19 At this stage, most departments find that an officer must
continue to use verbal commands and may touch the subject.
Additionally, many departments allow officers to use pain
compliance, chemical agents, and take downs.20
The third stage of subject action is active resistance. At this stage,
“[t]he subject’s actions are intended to facilitate an escape or prevent
an arrest.”21 Many law enforcement agencies will now allow the use
17. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-05-464, DEPARTMENT OF
HOMELAND SECURITY: TASER WEAPONS: USE OF TASERS BY SELECTED LAW
ENFORCEMENT AGENCIES 8 (2005) [hereinafter GAO, TASER WEAPONS].
18. Miller, Taser Use and the Use-of-Force Continuum, supra note 3, at 73.
19. See id. at 72–73.
20. See Russ Wolf et al., Police Use of Force and the Cumulative Force Factor,
32 POLICING: AN INT’L J. POLICE STRATEGIES & MGMT. 739, 743–44 (2009).
21. Miller, Taser Use and the Use-of-Force Continuum, supra note 3, at 73.
2012]
DON’T TASE ME BRO
291
of impact weapons, such as ECDs or a canine unit.22 Aggressive
resistance, the fourth stage, occurs when the subject exhibits
assaultive behavior that would likely cause physical injury to the
officers involved.23 Once a subject exhibits aggressive physical
behavior, almost every police department allows the use of Tasers, as
well as incapacitating strikes or holds.24 Assaultive, the fifth and final
stage, exists when a subject’s behavior is likely to cause serious
physical injury or death to the officer or public.25 When this type of
aggravated physical resistance is involved, deadly force is
authorized.26
In a survey of seven different agencies, a 2005 report by the
Government Accountability Office found that each agency authorizes
different levels of force at different stages on the Use-of-Force
Continuum.27 For example, the minimum stage for acceptable Taser
use ranged from the passive-resistance stage to the assaultive
(physical injury) stage.28
C. Tasers
i. Taser Overview and Use
The Taser is a form of stun gun or ECD and is the most widely
carried brand of ECD in law enforcement. It is the brain child of
NASA engineer Jack Cover, who named the weapon as an acronym
in honor of his favorite childhood fictional character, Thomas A.
Swift Electric Rifle.29 The weapon was first introduced to the
22. Wolf et al., supra note 20, at 744.
23. Miller, Taser Use and the Use-of-Force Continuum, supra note 3, at 73.
24. Wolf et al., supra note 20, at 743–44.
25. Miller, Taser Use and the Use-of-Force Continuum, supra note 3, at 73.
26. Wolf et al., supra note 20, at 743.
27. See GAO, TASER WEAPONS, supra note 17, at 3.
28. Id. at 9. Seven departments were surveyed on their Taser use. Id. One
“allows the use of Tasers in situations that an officer perceives as tactical, such as
when a subject is ‘passively resisting’ by not responding to the lawful, verbal
commands of the officer.” Id. Four departments “allow the use of Tasers . . . in
situations that the officer perceives as volatile. . . . [including] when a subject is
actively resisting arrest but not attacking the officer.” Id. Finally, two departments
“permit the use of Tasers when a police officer perceives the situation as potentially
harmful, as when a subject engages in assaultive behavior that creates a risk of
physical injury to another.” Id.
29. See MILLER, POLICE TASER UTILIZATION, supra note 1, at 8.
292
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
American public in a 1976 Clint Eastwood film, The Enforcer.30 But
it gained more attention after the Rodney King beating and the tasing
of University of Florida student Andrew Meyer.31 Taser weapons
come in many different shapes and sizes and can be used for a variety
of purposes.32 The type of Taser carried by law enforcement officers
can be operated using two different techniques that yield two
different results: dart-stun mode and drive-stun mode. Dart-stun
mode
uses compressed nitrogen to propel a pair of
“probes”—aluminum darts tipped with stainless steel
barbs connected to the [Taser] by insulated wires—
toward the target at a rate of over 160 feet per second.
Upon striking a person, the [Taser] delivers a 1200
volt, low ampere electrical charge . . . The electrical
impulse instantly overrides the victim’s central
nervous system, paralyzing the muscles throughout the
body, rendering the target limp and helpless.33
Once a Taser in dart-stun mode makes contact with the skin, the
barbs will imbed one quarter of an inch into the subject’s skin or
clothing to administer ten to twenty pulses of “50,000 volts of
electrical shock.”34 In drive-stun mode,
the operator removes the dart cartridge and pushes two
electrode contacts located on the front of the taser
directly against the victim. In this mode, the taser
delivers an electric shock to the victim, but it does not
cause an override of the victim's central nervous
system as it does in dart-mode.35
30. Randy Means & Eric Edwards, Chief’s Counsel: Electronic Control
Weapons: Liability Issues, THE POLICE CHIEF (Feb. 2005), available at
http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display
_arch&article_id=520&issue_id=22005.
31. See supra notes 8–12 and accompanying text.
32. See, e.g., Self Defense Products, TASER, http://www.taser.com/products/
self-defense-products (last visited Mar. 16, 2013).
33. Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (en banc) (quoting
Bryan v. MacPherson, 630 F.3d 805, 824 (9th Cir. 2010)).
34. Miller, Taser Use and the Use-of-Force Continuum, supra note 3, at 73.
35. Mattos, 661 F.3d at 443.
2012]
DON’T TASE ME BRO
293
Dart-stun mode is generally considered to be much more invasive
than drive-stun mode, but each technique has advantages and
disadvantages. Drive-stun mode causes pain and loss of muscle
control when the Taser contacts the subject’s skin, quickly
incapacitating the subject. This gives law enforcement officers more
control over the duration of the electric shock.36 But to use drive-stun
mode, an officer must be within arm’s reach of a subject who exhibits
danger.37 Alternatively, Tasers used in dart-stun mode cause instant
incapacitation and can be reactivated repeatedly from a safe
distance.38 Currently, Taser technology has developed firing speeds
of up to 220 feet per second and can reach distances of up to twentyone feet.39 However, a Taser used in dart-stun mode requires an
officer to point, aim, and shoot the weapon. This causes significantly
more pain than drive-stun mode and often requires a hospital visit to
remove the darts that can easily become lodged underneath the skin.40
Although Tasers can cause immediate pain and infrequent
permanent burn marks (in drive-stun mode) or scars (in dart-stun
mode), studies conducted by both private and public entities show
that Tasers do not pose a serious health threat and rarely result in
death.41 Still, it is important to note that while Tasers have been
deemed safe for use and have been used over 1,750,000 times by law
enforcement officers,42 no use-of-force technique can be considered
completely safe. Whenever a scintilla of force is used, there is a
chance that the situation could escalate or the subject could have a
resulting unknown and aberrant medical condition.43 Officers do not
know if an individual suffers from a preexisting injury or condition
36. See, e.g., MILLER, POLICE TASER UTILIZATION, supra note 1, at 7.
37. See, e.g., id.
38. See GAO, TASER WEAPONS, supra note 17, at 8.
39. See Miller, Taser Use and the Use-of-Force Continuum, supra note 3, at 73.
40. See, e.g., id.
41. See id.
42. Times Police Have Used TASER ECDs in the Field, TASER,
http://www.taser.com/taser-products-save-lives/times-police-have-used-taser-ecdsin-the-field (last visited Mar. 16, 2013).
43. See, e.g., Bryan v. MacPherson, 630 F.3d 805, 806 (9th Cir. 2010)
(describing how a tased man fell and broke four teeth); McKenny v. Harrison, 635
F.3d 354 (8th Cir. 2011) (explaining how a tased man fell through a second-story
window and died).
294
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
that can be exacerbated by Taser use.44 Specifically, an officer is
unlikely to be able to discern that a subject “suffers from a respiratory
impairment such as asthma, or from a pre-existing cardiovascular
condition,” or is in the early stages of pregnancy—all conditions
where Taser use is not recommended.45
ii. Taser Regulation
On a national level, Tasers are almost entirely unregulated as a
class of weapons.46 Taser regulation varies dramatically by
jurisdiction and depends on whether the agency using the Taser
classified it as a firearm.47 Tasers were initially, but are no longer,
classified as firearms by the United States Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF).48 Conversely, both the
State of Indiana and the City of Chicago classify Tasers as firearms,
and therefore, are subject to a plethora of firearm restrictions.49
Human rights organizations, including the American Civil
Liberties Union and Amnesty International, characterize Taser use as
torture and police brutality per se.50 They argue that after being
stunned, the subject is usually burned or injured by imbedded darts,
and in other instances more serious injuries occur.51 Overall,
however, Tasers have been proven to not only decrease the risk of
harm to law enforcement officers, but also to reduce the likelihood
that officers will use any deadly force because officers feel “more
confident in their ability to control noncompliant or combative
suspects.”52 Studies have also shown that Taser use reduces the
44. STANFORD CRIMINAL JUSTICE CTR., USE OF TASERS BY LAW ENFORCEMENT
AGENCIES: GUIDELINES AND RECOMMENDATIONS 6 (2005).
45. Id.
46. Cf. GAO, TASER WEAPONS, supra note 27, at 3 (explaining how some
federal jurisdictions have laws regulating Tasers).
47. See id.
48. See id.
49. See id.
50. See MILLER, POLICE TASER UTILIZATION, supra note 1, at 9–10.
51. See id. at 9.
52. Id. at 120; see also TASER Field Use and Statistics, TASER,
http://www.taser.com/research-and-safety/field-use-and-statistics (last visited Mar.
16, 2013) (“5.4% of ECD deployments prevented the use of lethal force.”);
DEFENCE SCIENTIFIC ADVISORY COUNCIL SUB-COMMITTEE ON MEDICAL
IMPLICATION OF LESS-LETHAL WEAPONS, STATEMENT ON THE MEDICAL
2012]
DON’T TASE ME BRO
295
amount of resistance that officers encounter from subjects.53 In a
report on the use of less-than-lethal weapons, the Department of
Justice determined that Tasers decrease the need for hand-to-hand
combat between law enforcement officers and subjects. This
subsequently reduces the risk that a subject will disarm an officer,
especially if the subject is physically larger than the law enforcement
officer.54 Taser International goes so far as to claim that Tasers
reduce excessive force claims by injured subjects.55
iii. Prevalence of Taser Use
Tasers are used by a myriad of local police forces as well as four
federal agencies: the ATF; the United States Marshals Service
(Service); the Department of Defense, including each military
branch; and the Bureau of Prisons. This Article will only analyze
Taser use by the ATF and the Service. Taser use by the Department
of Defense either applies in war or during military criminal
investigations that are subject to a different constitutional analysis.
And the Bureau of Prisons uses Tasers to control inmate behavior in
federal prisons, so analysis for improper Taser use would flow from
the Eighth Amendment right against cruel and unusual punishment
rather than the Fourth Amendment analysis at issue here.
The ATF’s mission is to “protect[] our communities from violent
criminals, criminal organizations, the illegal use and trafficking of
firearms, the illegal use and storage of explosives, acts of arson, and
bombings, acts of terrorism, and the illegal diversion of alcohol and
tobacco products.”56 The ATF introduced Tasers into its less-thanlethal arsenal (which also consists of batons; pepper spray; bean-bag
shot-gun rounds; baton launchers; and rubber projectiles) because its
agents were encountering a steady escalation in street crime.57 The
IMPLICATION OF M26 AND X26 TASER USE AT INCIDENTS WHERE FIREARMS
AUTHORITY HAS NOT BEEN GRANTED, 2007, DSTL/BSC/27/01/07, at 2 (U.K.).
53. MILLER, POLICE TASER UTILIZATION, supra note 1, at 123.
54. EVALUATION & INSPECTION DIV., OFFICE OF THE INSPECTOR GENERAL, U.S.
DEP’T OF JUSTICE, REPORT NO. I-2009-003, REVIEW OF THE DEPARTMENT OF
JUSTICE’S USE OF LESS-LETHAL WEAPONS 17 (2009) [hereinafter DOJ, REVIEW OF
LESS-LETHAL WEAPONS].
55. TASER Field Use and Statistics, TASER, http://www.taser.com/researchand-safety/field-use-and-statistics (last visited Apr. 7, 2013).
56. About ATF, ATF, http://www.atf.gov/about/ (last visited Mar. 16, 2013).
57. See DOJ, REVIEW OF LESS-LETHAL WEAPONS, supra note 54, at 1–2, 16.
296
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
ATF originally classified the Taser as a firearm, but it currently
classifies it as “an intermediate weapon and is an alternative to
impact weapons and chemical sprays.”58 The ATF’s use of Tasers has
dramatically increased since they introduced the weapon. Initially,
the use of Tasers constituted 9% of the ATF’s use of less-than-lethal
force and less than 5% of overall use of force for the Bureau. By
2008, those numbers had increased to 50% and 39% respectively,
making the Taser one of the ATF’s most used weapon. Not
coincidentally, the use of force between 2005 and 2008 did not
dramatically increase, but the percentage of less-than-lethal force
increased from 50% to 79%, thus reducing the use of lethal force
from 50% to 31%.59
The Service is responsible for apprehending fugitives, managing
asset forfeiture, protecting federal judges and courts, transporting and
managing prisoners, and protecting witnesses. Members of the
Service’s Fugitive Investigative Strike Team are empowered to
“cross city, county, and state boundaries with full arrest powers.”60
Additionally, the Special Operations Group is responsible for
performing tactical operations during times of national crisis.61
Tasers were first issued to the Special Operations Group in 2000,
then to the entire Service in 2006.62 The Service regulations allow
Marshals to “use ‘non-lethal’ force when they have reasonable
grounds to believe that such force is necessary to (1) protect
themselves or others from physical harm, (2) restrain or subdue a
resistant prisoner or suspect, (3) make an arrest, or (4) prevent a
prisoner from escaping.”63 In 2006, Marshals used Tasers only eight
times, which constituted 4% of all nonlethal force and 2% of overall
force.64 Just two years later, Marshals used Tasers 138 times, which
accounted for 54% of all nonlethal use of force and one-third of
overall use of force.65
58. Id. at x.
59. Id. at 18 tbl.2.
60. History – Fugitive Investigative Strike Team (FIST), U.S. MARSHALS
SERVICE, http://www.usmarshals.gov/history/fist/index.html (last visited Mar. 16,
2013).
61. Fact Sheet, U.S. MARSHALS SERVICE, http://www.usmarshals.gov/duties/
factsheets/facts-2011.html (last visited Mar. 16, 2013).
62. Id. at i n.3, 15 n.47.
63. Id. at 25.
64. Id. at 20.
65. Id.
2012]
DON’T TASE ME BRO
297
While Tasers are not currently employed by any other federal
agency, the FBI and Drug Enforcement Administration are
considering Taser use.66 One concern, however, is the uncertainty as
to when law enforcement officers can legally use Tasers. To
complicate matters, there is no parity in Taser policy among the
different agencies under the Department of Justice.67 In fact, the ATF
is the only agency that mandates officers to follow its Taser policy;
all other agencies require officers to follow often unclear local
policies of the jurisdiction where the officers are stationed.68 This is
particularly confounding for the Service’s officers who must cross
jurisdictional boundaries to pursue fugitives or protect witnesses.
These officers cannot be expected to know the local policy for each
jurisdiction. Use of these crucial weapons in federal agencies will
continue to be somewhat distilled until uniform guidance is received
from the courts.
II. FEDERAL LAW
There are several types of federal laws that affect excessive force
claims involving Tasers. One type is the Fourth Amendment and the
Supreme Court jurisprudence surrounding the excessive force claims.
While the Fourth Amendment and Graham v. Conner provide a
framework to analyze constitutional violations, the federal
government and individual states enjoy sovereign immunity, so any
claim for recovery must be made under one of two methods that
waive sovereign immunity for constitutional torts: (1) 42 U.S.C. §
1983 (for violations by state actors) or (2) a Bivens claim (for
violations by federal actors).69 While this Article makes an argument
based on federal law enforcement responsibilities, § 1983 provides a
well-suited framework of analysis because most Taser cases have
occurred on a state level under § 1983. Moreover, both § 1983 and
Bivens claims are treated identically for analyzing excessive force
and qualified immunity.70 It is important to note that in the context of
66. Id. at v, 15–16.
67. Id. at 24.
68. Id. at iii.
69. See, e.g., William N. Evans, Comment, Supervisory Liability After Iqbal:
Decoupling Bivens from Section 1983, 77 U. CHI. L. REV. 1401, 1404 (2010)
(citing 490 U.S. 386 (1989)).
70. Pearson v. Callahan, 129 S. Ct. 808, 818-19 & n.1 (2009) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 & n.30 (1982)).
298
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
excessive force, the question is not whether Tasers are legal, but
whether they are being legally used.71
A. The Fourth Amendment and Excessive Force Analysis
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.72
Initially, courts tested the application of force against the
Fourteenth Amendment’s substantive due process standard.73 But in
1989, the Supreme Court clarified that the application of force is
analyzed under “the Fourth Amendment’s prohibition against
unreasonable seizures of the person,” and force that is excessive is
unconstitutional.74 The Graham Court ruled that the analysis must
start by determining a “specific constitutional right allegedly
infringed by the challenged application of force.”75 The Court then
clearly determined that “all claims that law enforcement officers have
used excessive force—deadly or not—in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen should be
analyzed under the Fourth Amendment and its ‘reasonableness’
standard, rather than under a ‘substantive due process’ approach.”76
The Court held that the Fourth Amendment applies to excessive force
claims because it “provides an explicit textual source of
constitutional protection against this sort of physically intrusive
governmental conduct . . . .”77
There are no per se rules to determine whether the force applied
is excessive under the Fourth Amendment. Instead, the Supreme
71. See, e.g., Means & Edwards, supra note 30.
72. U.S. CONST. amend. IV.
73. See, e.g., Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (laying out
the four-part substantive due process test that the majority of federal courts
followed until 1989).
74. Graham, 490 U.S. at 395.
75. Id. at 394. See id. at 395 n.10 for a discussion of the Eighth Amendment’s
protection against cruel and unusual punishment.
76. Id. at 395.
77. Id.
2012]
DON’T TASE ME BRO
299
Court has created a balancing test that weighs the level of force and
intrusion upon the rights of an individual against the government’s
interest in subduing that individual.78 Important factors in this
balancing test include “the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or
others, and whether [the suspect] is actively resisting arrest or
attempting to evade arrest by flight.”79 This is now referred to as the
Graham multifactor balancing test or the Graham factors. The
Graham multifactor balancing test looks at whether a law
enforcement officer, in the specific situation, made an objectively
reasonable decision.80
B. 42 U.S.C. § 1983
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or
other proper proceeding for redress . . . .81
Section 1983 has its origins in the Civil Rights Act of 1871 (also
known as the Ku Klux Klan Act).82 The legislation was passed as a
response to the systematic racial violence and constitutional
violations that were rampant in the South during the post-Civil War
era, where the Ku Klux Klan and local officials were often at the
forefront of, or at least complicit in, denying rights to black
southerners.83 The legislation “was enacted for the express purpose of
‘enforc[ing] the Provisions of the Fourteenth Amendment.’”84
78. See, e.g., id. at 396; Saucier v. Katz, 533 U.S. 194, 205 (2001), abrogated
by Pearson v. Callahan, 129 S. Ct. 808 (2009); Pearson, 129 S. Ct. at 822 (2009).
79. Graham, 490 U.S. at 396.
80. Id. at 397.
81. 42 U.S.C.A. § 1983 (Westlaw 2013).
82. Jack M. Beermann, The Unhappy History of Civil Rights Legislation, Fifty
Years Later, 34 CONN. L. REV. 981, 1017 (2002).
83. Id.
84. Mitchum v. Foster, 407 U.S. 225, 238 (1972) (alteration in original)
(quoting Civil Rights Act of 1866, 17 Stat. 13).
300
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
Currently codified as § 1983, the Civil Rights Act is still the premier
guardian of citizens’ constitutional rights as the most commonly used
remedy to recompense a violation of those rights.
The four essential elements of a § 1983 claim are the following:
“(1) conduct by a ‘person’; (2) who acted ‘under color of state law’;
(3) proximately causing; [and] (4) a deprivation of a federally
protected right.”85 For the purposes of this Article, a law enforcement
officer will always be a person acting under state law. Section 1983
“is not itself a source of substantive rights, but merely provides a
method for vindicating federal rights elsewhere conferred.”86 While it
creates a statutorily conferred method for recovering from
constitutional violations, the common law of torts has long allowed
individuals to be compensated for injuries resulting from legal-rights
violations.87
C. Claims under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics
The Supreme Court for the first time recognized a federal
constitutional tort action in Bivens.88 The underlying issue in Bivens
was an alleged Fourth Amendment violation for an unreasonable
search and seizure.89 The crux of a Bivens claim is tantamount to that
of a § 1983 claim, and the spirit behind the two are so identical that
“[t]he very essence of civil liberty certainly consists in the right of
every individual to claim the protection of the laws, whenever he
receives an injury.”90
Section 1983 and Bivens claims provide avenues for private
individuals to recover when their constitutional rights are violated by
government actors.91 The difference between claims under § 1983
and Bivens is that § 1983 provides a remedy to constitutional
violations by state actors, while Bivens claims provide a remedy to
constitutional violations by federal actors. Additionally, § 1983
85. MARTIN A. SCHWARTZ & KATHRYN R. URBONYA, SECTION 1983
LITIGATION 6 (2d ed. 2008).
86. Graham v. Connor, 490 U.S. 386, 393–94 (1989) (quoting Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979) (internal quotation marks omitted)).
87. Heck v. Humphrey, 512 U.S. 477, 483 (1994).
88. 403 U.S. 388, 399 (1971) (Harlan, J., concurring).
89. Id. at 389.
90. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
91. Graham, 490 U.S. at 394 n.9; see also Evans, supra note 69, at 1404–05.
2012]
DON’T TASE ME BRO
301
provides a remedy for every constitutional tort, and under Bivens, a
particular analysis must be performed.92 But to reemphasize, both §
1983 and Bivens provide a legal remedy for Fourth Amendment
violations by government actors.93
D. Qualified Immunity
The most common defense to either a § 1983 or Bivens claim is
qualified immunity.94 “The doctrine of qualified immunity protects
government officials ‘from liability for civil damages insofar as their
conduct does not violate the clearly established statutory or
constitutional rights of which a reasonable person would have
known.’”95 In the Court’s most recent decision, which involved a §
1983 excessive force claim for a Fourth Amendment violation, it held
that “[q]ualified immunity balances two important interests—the
need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties
reasonably.”96 Qualified immunity must be asserted before discovery
because qualified immunity is not only a defense to a § 1983 lawsuit,
but it is also “an immunity from suit . . . [thus] it is effectively lost if
a case is erroneously permitted to go to trial.”97 Finally, a government
actor can be shielded from liability if a reasonable mistake is made,
whether it be “a mistake of fact, . . . law, or a . . . mixed question[] of
law and fact.”98 It is important to note that qualified immunity is not
statutory, but rather a Supreme Court-created doctrine that implicitly
92. See Evans, supra note 69, at 1405. For Bivens claims, the court must
determine “whether any alternative, existing process for protecting the interest
amounts to a convincing reason for the Judicial Branch to refrain from providing a
new and freestanding remedy in damages.” Wilkie v. Robbins, 551 U.S. 537, 550
(2007).
93. Graham, 490 U.S. at 394 n.9.
94. See SCHWARTZ & URBONYA, supra note 84, at 143.
95. Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (emphasis added) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (internal quotation marks omitted)).
96. Id.
97. Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (internal
quotation marks omitted)).
98. Id. (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J.,
dissenting) (citation omitted)).
302
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
grants common-law immunities and defenses that existed in 1871 at
the time the Civil Rights Act was passed.99
Qualified immunity necessarily implicates a reasonableness
analysis. For a plaintiff to prevail when the defendant raises qualified
immunity, “[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates
that right.”100 In the Fourth Amendment context, “the reasonableness
of the officer’s action must be evaluated in light of the information
that the defendant officer possessed at the time of the act . . . .”101
In Saucier v. Katz, the Court set out a two-part analysis to
determine whether a government actor is entitled to qualified
immunity.102 The Saucier Court ruled that first courts must ask
whether a constitutional right was violated on the alleged facts, and
then determine if that right was clearly established in light of the
specific factual context of the case.103 More recently, in Pearson v.
Callahan, the Court reverted to the constitutional-avoidance doctrine
and held that either prong of the Saucier test may be answered
first.104 Thus, regardless of a constitutional right being violated, if it
is evident to the court that the law is not clear on whether the
officer’s actions would constitute a violation, the court does not need
to reach the question of whether a constitutional violation occurred at
all.
When it comes to excessive force claims—particularly those
involving Tasers—the decisive question is often whether the right
was clearly established. The reasoning behind this requirement is
clear. The Supreme Court wants to ensure that before a law
enforcement agent is held liable for any action, the agent has a “fair
and clear warning” that the actions may lead to such liability.105
Under qualified immunity jurisprudence, law enforcement officers
“are not liable for bad guesses in gray areas; they are liable for
99. See Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity?
Federal Officers, State Criminal Law, and the Supremacy Clause, 112 YALE L.J.
2195, 2209 (2003).
100. Anderson v. Creighton, 483 U.S. 635, 640 (1987).
101. Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992).
102. 533 U.S. 194, 199 (2001), abrogated by Pearson, 129 S. Ct. at 808.
103. Id. at 207.
104. Pearson, 129 S. Ct. at 812.
105. Hope v. Pelzer, 536 U.S. 730, 741 (2002).
2012]
DON’T TASE ME BRO
303
transgressing bright lines.”106 In short, officers must be aware of
potential personal liability.107 This is a problem because there are no
bright-line rules in the jurisprudence about Tasers in most circuits.
More importantly, there is a circuit split as to what level of force
Tasers constitute, when their use is appropriate, and when qualified
immunity should be granted. This puts agents, like those in the
Service’s Fugitive Investigation Strike Team, in a precarious position
as they cross state and circuit lines in search of America’s most
dangerous criminals.
III. THE CIRCUITS ARE SPLIT ON WHAT FORCE TASERS CONSTITUTE
The Circuits are split on two issues that affect Taser cases. First,
courts are split on what sources of law put officers on notice that
certain behavior that constitutes a violation of a federally conferred
right to meet the “clearly established” requirement. Other courts
narrowly construe the clearly established requirement. “The Eleventh
Circuit will only look to decisions of the U.S. Supreme Court, the
U.S. Court of Appeals for the Eleventh Circuit, and the highest court
of the state in which the incident giving rise to the lawsuit
occurred.”108 The Ninth Circuit uses a much broader standard that
includes the United States Constitution, Supreme Court decisions,
Ninth Circuit decisions, and any other available law, including
decisions from other circuits; even an agency’s internal regulations
can be legally binding to show a violation under § 1983 or Bivens.109
The Sixth Circuit is a blend of the Ninth and Eleventh Circuits, using
the Constitution, Supreme Court decisions, Sixth Circuit decisions,
and decisions of other circuits.110 It is interesting to note how
differently the circuits participate in constitutional analysis and
qualified immunity, but determining which of the three
aforementioned standards should be uniformly applied across the
circuits is beyond the scope of this Article.
106. Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992); accord Abdouch
v. Burger, 426 F.3d 982, 987 (8th Cir. 2005); Littrell v. Franklin 388 F.3d 578, 582
(8th Cir. 2004).
107. See Michael S. Catlett, Note, Clearly Not Established: Decisional Law and
the Qualified Immunity Doctrine, 47 ARIZ. L. REV. 1031, 1053 (2005) (providing a
more thorough analysis of notice for purposes of qualified immunity).
108. See id. at 1049.
109. See id. at 1048.
110. See id. at 1047.
304
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
Second, courts are split on what level of force a Taser constitutes.
Whether the use of force was excessive depends on the level of force
needed. Not only do the different circuits hold that Tasers constitute
different levels of force, most holding that Tasers are a gray area
between trivial and lethal force, but also some circuits differentiate
between Tasers used in drive-stun and dart-stun mode. Below, this
Article examines the twelve circuits and discusses what each circuit
has concluded about Tasers and use of force.
A. First Circuit
In the First Circuit, there is only one case that has examined
Tasers under the excessive force analysis of the Fourth Amendment.
In Parker v. Gerrish, the First Circuit affirmed both the denial of
qualified immunity and the $111,000 damages award after a jury
trial.111 In Parker, Parker was pulled over for driving while
intoxicated.112 He was compliant with Officer Gerrish’s commands;
however, when a second officer arrived on scene and began shouting
contradictory orders, Parker became confused. He did not know
which order to follow, so he appeared noncompliant.113 Officer
Gerrish then tased Parker without warning.114
The court applied the Graham multifactor test, and determined
that the first factor, the seriousness of the offense (driving while
intoxicated), weighed in favor of Parker.115 Next, the court
determined that Parker “did not pose an immediate threat to the
safety of the officers.”116 The court noted that there were three
officers on the scene, Parker was unarmed, and he never assaulted—
or attempted to assault—any of the officers.117 Finally, in reviewing
the third Graham factor, the court found that Parker was neither
resisting arrest nor attempting to flee.118
Additionally, the court engaged in a qualified-immunity analysis
to determine if Officer Gerrish’s use of the Taser constituted a
111. 547 F.3d 1 (1st Cir. 2008), abrogated by Maldonando v. Fontanes, 568 F.3d
263 (1st Cir. 2009).
112. Id. at 3.
113. Id. at 4.
114. Id. at 4–5.
115. Id. at 9.
116. Id. at 10.
117. Id. at 6.
118. Id. at 11.
2012]
DON’T TASE ME BRO
305
reasonable mistake under the qualified immunity doctrine.119 The
court used a three-part test to assess the officer’s claim of qualified
immunity, splitting the clearly established prong in Saucier v. Katz
into two subparts: the actual law and reasonableness.120 First, the
court found a constitutional violation based on its analysis of the
Graham multifactor balancing test.121 Next, the court looked at
whether the right was clearly established.122 The court considered that
the South Portland Police Department lists Tasers just below deadly
force at the harmful or assaultive stage on its Use-of-Force
Continuum.123 Finally, the court addressed “whether a reasonable
officer, similarly situated, would understand that the challenged
conduct violated that established right.”124 The court did not attempt
to determine what level of force a Taser constitutes.125
Less than a year after Parker, the First Circuit abrogated the
three-part qualified-immunity test in favor of the two-part test used
by the Supreme Court in Saucier and Pearson.126 In doing so, the
court noted that “[w]hile the substance of [the First Circuit’s] threepart test has been faithful to the substance of the [Supreme Court’s]
two-part test, we owe fidelity to the Court’s articulation of the
test.”127 Thus, while the First Circuit has been (somewhat) faithful to
the Supreme Court’s analysis of excessive force and qualified
immunity, it has refused to determine what base level of force a Taser
constitutes.
B. Second Circuit
The Second Circuit has not published a decision about the use of
force involving Tasers. However, it decided an unpublished case that
may indicate how it would decide a Taser case in the future. In
Crowell v. Kirkpatrick, Crowell and Kilmurray were arrested for
119. Id.
120. Id. at 12.
121. Id.
122. Id.
123. Id. at 6.
124. Id. at 12 (quoting Philip v. Cronin, 537 F.3d 26, 34 (1st Cir. 2008) (internal
quotation marks omitted)).
125. See Parker, 547 F.3d at 1.
126. Maldonando v. Fontanes, 568 F.3d 263, 268–69 (1st Cir. 2009) (citations
omitted).
127. Id. at 269.
306
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
trespassing and resisting arrest after chaining themselves to a severalhundred-pound barrel drum in protest.128 The plaintiffs called other
members of their organization to come, but before they arrived,
police attempted several less intrusive methods of unchaining
Crowell and Kilmurray from the drum. They gave the plaintiffs
thorough warnings about how a Taser works and told them that if
they did not release themselves from the drum, they would be
tased.129 The plaintiffs refused to unchain themselves and were tased
in drive-stun mode.130 The court mentioned the Graham multifactor
test in a cursory fashion but applied what looked more like a totality
of the circumstances test.131 Notably, the court emphasized that the
protestors had called for backup, so removing the plaintiffs from the
drum before a crowd gathered added a “degree of urgency” to the
officers’ actions.132 The court also noted that the plaintiffs were the
only people who could unchain themselves.133
While the court did not determine what level of force the Taser
constituted, it did distinguish dart-stun mode from drive-stun mode.
They relied on the Ninth Circuit’s later opinion in Brooks v. City of
Seattle to determine that “drive-stun mode typically causes
temporary, if significant, pain and no permanent injury.”134 The court
held that the officers’ use of force in this instance was reasonable, so
it did not violate the Fourth Amendment.135
C. Third Circuit
The Third Circuit has only decided two cases about Tasers and
excessive force, which are unpublished. The cases, Woods v. Grant136
and Brown v. Cwynar,137 will not likely predict future action in the
Third Circuit on Taser use.
128. 400 F. App’x 592, 594–95 (2d Cir. 2010).
129. Id. at 595.
130. Id.
131. See id. at 594.
132. Id. at 595.
133. Id.
134. Id. (citing Brooks v. City of Seattle, 599 F.3d 1018, 1027, reh’g granted en
banc, 623 F.3d 911 (9th Cir. 2010), aff’d in part, rev’d in part sub nom. Mattos v.
Agarano, 661 F.3d 433 (9th Cir. 2011)).
135. Id. at 595.
136. 381 F. App’x 144 (3d Cir. 2010).
137. 484 F. App’x 676 (3d Cir. 2012).
2012]
DON’T TASE ME BRO
307
In Woods, police used a Taser four times on the plaintiff, who
was actively resisting arrest by punching the officers who were
attempting to execute an arrest warrant.138 Ultimately, Woods had to
be subdued by a canine that bit him twice.139 The court held that the
Graham multifactor balancing test would apply, but it determined
that Woods did not plead specific facts under which he could win his
case.140 In dicta, the court noted that the Graham factors weighed
heavily in the police officers’ favor, particularly because Woods was
actively resisting arrest by physically assaulting the police.141
Likewise, the Brown court made a glancing mention of Graham
before concluding that the Taser did not constitute excessive force.
But no discussion was made about what level of force a Taser
constitutes.142 Interestingly, the court notes that officers may deploy
their Tasers if they reasonably believe that a person will act
belligerently and resist arrest without being further subdued.143 Also,
the Brown court did not discuss qualified immunity, as it found no
constitutional violation, nor did it determine what level of force a
Taser exhibits.
D. Fourth Circuit
There have been two informative decisions in the Fourth Circuit
about Taser use—one case about Taser use and the other about a
tragic mistake of weapon.
In the Taser-use case, Orem v. Rephann, Orem was served with a
family protection order and became incredibly agitated after learning
that the protection order meant she would not see her child for six
months.144 She charged at the officers, who arrested her, and she was
placed in handcuffs and ankle restraints and placed in the back of a
police car.145 She continued to act agitated and moved around during
her transport, forcing the officer to pull the car over and tighten the
ankle restraints.146 Another deputy, apparently familiar with Orem
138.
139.
140.
141.
142.
143.
144.
145.
146.
381 F. App’x at 145.
Id.
Id. at 146.
Id.
See Brown, 484 F. App’x at 679–80.
Id. at 680.
523 F.3d 442, 444 (4th Cir. 2008).
Id.
Id.
308
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
because her husband was also a sheriff’s deputy, asked her to calm
down. When she proceeded to curse at the officer, the officer stated
that she needed to respect him and tased her twice.147
The court used the Graham multifactor test to determine that
there was no Fourth Amendment violation because the tasing
occurred after Orem was already in police custody.148 Therefore, the
court applied the Fourteenth Amendment’s “unnecessary and wanton
pain and suffering” analysis149 using the Johnson v. Glick multifactor
test, which included
[T]he need for the application of force, the
relationship between the need and the amount of force
used, the extent of the injury inflicted, and whether the
force was applied in a good faith effort to maintain
and restore discipline or maliciously and sadistically
for the very purpose of causing harm.150
The court found that the officer who tased Orem did not assist in
tightening her restraints but went out of his way to incite her and was
apathetic to her allegations of spousal abuse.151 The court looked at
Orem’s size relative to the officer who tased her and how the officer
tased her in harmful and embarrassing locations—once below her
breast and once on her inner thigh.152 But the court did not
specifically state what force a Taser constituted, nor did it distinguish
between a Taser in drive-stun mode and dart-stun mode. The court
did note that a Taser “inflicts a painful and frightening blow, which
temporarily paralyzes the large muscles of the body, rendering the
victim helpless.”153
The second case, Henry v. Purnell, is a tragic mistake of weapon
case.154 Henry, an unarmed man, was shot when he tried to flee arrest
on a warrant for failure to pay child support.155 Officer Purnell
thought that he had pulled his Taser out of the holster, but instead he
147.
148.
149.
150.
151.
152.
153.
154.
155.
Id. at 444–47.
Id. at 446.
Id.
Id. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).
Id.
Id. at 447.
Id. at 448 (citation omitted).
652 F.3d 524 (4th Cir. 2011) (en banc).
Id. at 527.
2012]
DON’T TASE ME BRO
309
pulled his firearm and shot Henry.156 The court determined that
because Officer Purnell actually used a firearm, the court should
evaluate whether it was reasonable to use deadly force instead of
evaluating it as a Taser case.157 Judge Andre Davis filed a
concurrence discussing the novel and difficult question that Tasers
raise for the courts but agreed with the majority that a discussion of
Tasers should be left for another day.158
In Judge Dennis Shedd’s scathing dissent, he found that Officer
Purnell “made a mistake in his execution of an otherwise proper
action,” implying that Taser use would have been within the realm of
acceptable force.159 Judge Shedd also noted that the internal
department regulations on Taser use are not necessarily pertinent to a
Fourth Amendment analysis.160
Judge Paul Niemeyer also dissented, suggesting that refusal to
analyze the case under the Taser context as a mistake of fact (which
weapon the officer was using) would severely narrow the scope of
qualified immunity by allowing personal liability for officer
negligence.161
E. Fifth Circuit
The Fifth Circuit has only decided two notable cases that may
help determine the Circuit’s future Taser decisions.
In Autin v. City of Baytown, Autin called the police to help her
check on the tenant in her brother’s home because she believed that
he may be seriously ill.162 Autin picked up a brick to knock harder on
the door, and the police officer she called to help her attempted to
tase her in dart-stun mode.163 When his Taser malfunctioned, he
walked toward Autin and tased her in drive-stun mode.164
Unfortunately, the Taser malfunctioned again, and ultimately inserted
barbs into her skin.165
156.
157.
158.
159.
160.
161.
162.
163.
164.
165.
Id.
Id. at 532.
Id. at 537–42 (Davis, J., concurring).
Id. at 552 (Shedd, J., dissenting) (emphasis added).
Id. at 545 n.6.
Id. at 556 (Niemeyer, J., dissenting).
174 F. App’x 183, 183–84 (5th Cir. 2005).
Id. at 184.
Id.
Id.
310
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
The court applied the Saucier two-prong analysis and used the
Circuit’s three-step excessive force test, incorporating the Graham
factors as an aspect of that test.166 The three steps are whether “(1)
[plaintiff] suffered significant injury; (2) resulting directly and only
from the use of force that was clearly excessive to the need; and (3)
the force was objectively unreasonable.”167 The court in Autin held
that the force was “clearly excessive to the need” because Autin was
at most engaged in “criminal mischief” and “posed no objective
threat” to the police officer (like many other circuits taking Autin and
the officer’s respective sizes into account).168 Finally, the court held
that the officer was not entitled to qualified immunity because any
rational officer should have known that his behavior violated Autin’s
Fourth Amendment rights.169
More recently, in Poole v. City of Shreveport, the court affirmed
the dismissal of a § 1983 claim at the summary judgment stage on the
basis of qualified immunity.170 Poole was pulled over during a
routine traffic stop, and an altercation with police escalated, which
resulted in one of the officers briefly tasing Poole.171 The
confrontation between Poole and the police officers was captured on
tape.172 The court focused on Graham’s objective reasonability
requirement and made Poole show that he had an injury that resulted
from clearly excessive force and that the excessive force was clearly
unreasonable.173 The court then determined that the brief use of the
Taser was not clearly excessive or unreasonable in light of the video
evidence that showed Poole resisting arrest.174
In these cases, the Fifth Circuit did not determine what level of
force a Taser constitutes within the framework of the Fourth
Amendment prohibition on excessive force.
166.
167.
168.
169.
170.
171.
172.
173.
174.
Id. at 184–85.
Id. at 185 (citing Fontenot v. Cormier, 56 F.3d 669, 675 (5th Cir. 1995)).
Id.
Id. at 185–86.
691 F.3d 624 (5th Cir. 2012).
Id. at 626.
Id. at 625.
Id. at 628.
Id. at 629.
2012]
DON’T TASE ME BRO
311
F. Sixth Circuit
The Sixth Circuit has had an active docket of excessive force
cases involving Tasers, although only two of these cases have been
published. The most commonly cited case is Russo v. City of
Cincinnati, which was decided in the early days of widespread Taser
use.175 In Russo, Thomas Bubenofer, a diagnosed paranoid
schizophrenic, refused to return from a two-hour psychiatric hospital
leave.176 The Cincinnati Police Department was called to retrieve
Bubenhofer, and they were warned that he was “suicidal, homicidal,
and a hazard to police.”177 When police arrived on the scene,
Bubenhofer was holding two butcher knives and threatened to kill the
officers.178 The officers fired Tasers at Bubenhofer, who then rushed
at the officers with the knives.179 The police then fired their service
revolvers at Bubenhofer, which caused him to fall down the stairs
while still holding one of the knives.180
Bubenhofer was shot and tased twice more but still refused to
drop the knife; he charged up the stairs again, inciting officers to fire
their revolvers again.181 Bubenhofer made one last attempt to charge
officers when he was fatally shot.182 In total, Bubenhofer had been
tased four times and shot twenty-two times.183 In an internal
investigation, the Cincinnati Office of Municipal Investigation found
that the tasing was improper because Bubenhofer should have been
considered a barricaded person, so the Special Weapons and Tactics
(S.W.A.T.) team should have been called.184
Russo, the administrator of Bubenhofer’s estate, sued the City of
Cincinnati alleging that both the shooting and tasing constituted
excessive force.185 The District Court granted the city’s summaryjudgment claims on the use of revolvers but denied summary
175.
176.
177.
178.
179.
180.
181.
182.
183.
184.
185.
953 F.2d 1036 (6th Cir. 1992).
Id. at 1039.
Id. (citation omitted).
Id. at 1040.
Id.
Id.
Id. at 1041.
Id.
Id.
Id.
Id. at 1039.
312
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
judgment on the Taser use.186 The Sixth Circuit reversed and held
that the internal police policy did not constitute an established law.
Thus, the constitutional violation was not clearly established,
meaning that the officers were entitled to qualified immunity.187 The
court further held that only “binding precedent by the Supreme Court,
its court of appeals,” or the district court where the action is brought
“provide such clearly established law.”188 The court was persuaded
that at the time the officers used the Taser, they were using the
weapon as an alternative to lethal force in the face of a homicidal,
mentally ill patient armed with butcher knives.189
More recently, the Sixth Circuit revisited Taser use in a case
involving a middle-aged man who was high on crack cocaine,
paranoid, and actively resisting arrest.190 An officer tased the man
between four and six times in drive-stun mode.191 The man
subsequently lost consciousness and died several days later from the
cocaine’s effects.192 His estate subsequently filed a § 1983 claim for
excessive force.193 The court discussed the importance of a
particularized definition for what right was violated, but it did not
address the importance of defining what the force of a Taser
constitutes.194 The court outlined a potential bright-line rule for Taser
use that revolves around whether a suspect is resisting an officer. The
court found that the use of a “taser repeatedly on a suspect actively
resisting arrest and refusing to be handcuffed” did not amount to
excessive force, but a tased suspect who was compliant or had
186. Id. at 1041.
187. Id. at 1042–43.
188. Id. at 1043 (quoting Ohio Civil Serv. Emps. Ass’n v. Seiter, 858 F.2d 1171,
1177 (6th Cir. 1988)) (emphasis added).
189. Id. at 1045.
190. Hagans v. Franklin Cnty. Sheriff’s Office, 695 F.3d 505, 507 (6th Cir.
2012).
191. See id. at 507.
192. Id. at 507–08.
193. Id. at 508.
194. See id. at 508–11.
If it defeats the qualified-immunity analysis to define the right
too broadly (as the right to be free of excessive force), it defeats
the purpose of § 1983 to define the right too narrowly (as the
right to be free of needless assaults by left-handed police officers
during Tuesday siestas).
Id.
2012]
DON’T TASE ME BRO
313
stopped resisting did.195 The court further noted that its decision
“bucks [the] trend” of deciding Taser excessive-force cases on the
basis that the law was not clearly established, referring to the Ninth
Circuit’s en banc decisions in Mattos v. Agarano.196
Even in light of the Taser-related cases the Sixth Circuit has
decided, only one unpublished decision determined the exact level of
force Tasers constitute. In a 2008 case, police officers were denied
qualified immunity after tasing a mentally unstable man who stole a
bulldozer and abandoned it in the middle of a major highway.197 A
police officer called for backup and chased the man. This resulted in
a struggle where the man attempted to choke the police officer.198
Once backup arrived, the officers located the man in a marsh. The
man continued to be uncooperative and was tased four times in drivestun mode.199 As a result, he drowned in the marsh in less than two
feet of water.200
The court used the Sixth Circuit’s three-part test to determine if
the officer was entitled to qualified immunity.201 The test first
determines “whether the plaintiff has alleged facts which, taken in
light most favorable to the plaintiff showed that a constitutional
violation had occurred.”202 If that element is satisfied, the court then
determines “whether the violation involved a clearly established
constitutional right of which a reasonable person would have
known.”203 Finally, even if a constitutional right is clearly
established, the court will consider “whether [the] plaintiff has
offered sufficient evidence to indicate that what the officer did was
objectively unreasonable in light of the clearly established
constitutional rights.”204
Under this analysis, the court held that tasing a suspect for a
minor, nonviolent crime while he is face down in two feet of water
and mud violated his Fourth Amendment rights and constituted
195. Id. at 509.
196. Id. at 510 (citing Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (en
banc)).
197. Landis v. Baker, 297 F. App’x 453, 455 (6th Cir. 2008).
198. Id. at 455–56.
199. Id. at 456–57.
200. Id. at 458.
201. See id.
202. Id.
203. Id.
204. Id.
314
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
excessive force.205 In so holding, the court determined that tasing the
subject constituted substantial force.206
The court determined that the right to be free from excessive
force was clearly established using the Johnson v. Glick factors,
instead of the Graham factors, and that the officers tased the suspect
“more times than necessary in an unreasonably dangerous manner” to
subdue him.207 Although holding that a Taser constituted “substantial
force,” the court analogized the Taser to pepper spray.208 The Sixth
Circuit held in Russo that only decisions of the Supreme Court, Sixth
Circuit, and district court where the action is filed can create clearly
established law. But the court relied heavily on the Taser manual,
which specifically warned against using Tasers in or near water
because of the risk that a subject could drown.209 Finally, the court
held that there was a genuine issue of material fact with regard to
whether the officers were objectively reasonable in tasing a subject
that they knew was unarmed and either high on drugs or mentally
unstable.210
In a recent decision, Williams v. Sandel, about Tasers and
excessive force, the court found no constitutional violation when a
man high on ecstasy and jogging naked down the interstate was tased
thirty-eight times.211 Using the Graham multifactor test, the court
determined that jogging naked down an interstate is not a serious
violation of the law.212 But the court found that Williams’s behavior
of resisting arrest posed an immediate safety threat to the officers and
passing motorists.213 The court again analogized the use of a Taser to
the use of pepper spray and found that the officers’ use of force was
objectively reasonable to gain control of Williams. Once Williams
was handcuffed, all use of force ceased and eliminated the officer’s
chance of claiming qualified immunity.214
205.
206.
207.
208.
209.
210.
211.
212.
213.
214.
See id. at 461.
See id.
Id. at 462.
Id. at 463.
See id. at 464.
Id. at 465–66.
433 F. App’x 353, 354, 364 n.5 (6th Cir. 2011).
See id. at 360–61.
Id. at 361–62.
See id. at 362–63.
2012]
DON’T TASE ME BRO
315
G. Seventh Circuit
The Seventh Circuit first dealt with the issue of Tasers, both
before and after an arrest, in Forrest v. Prine.215 Police were called to
the site of a domestic-violence dispute. Forrest punched Officer Prine
in the face and was tased several times.216 At the jail, Forrest refused
to participate in a strip search, and Officer Prine did not believe it
was safe to approach him.217 Officer Prine warned Forrest that failure
to comply would result in being tased again. Forrest continued to
refuse and was tased in dart-stun mode, and one prong hit his face.218
The court ultimately held that there was no excessive-force
violation under the Fourth Amendment for the pre-arrest tasing or
under the Fourteenth Amendment for the post-arrest tasing.219
Notably, the court applied a four-part qualified-immunity test,
requiring that Forrest “(1) had a constitutionally protected right (2)
that he was deprived of that right, (3) that Officer Prine intentionally
deprived him of that right and, (4) that Officer Prine acted under
color of state law.”220 The intent requirement is in stark contrast with
the Fourth Circuit’s holding that an officer can be liable under §
1983, even in a negligence action.221
In an Eighth Amendment case, the court held that the Taser
constitutes “more than de minimus” force, but the court did not
analyze what force the weapon constitutes. Although in analogizing
the Taser to tear gas, there was a strong implication that the force is
not considered substantial, as it has been considered in the Sixth
Circuit.222
215. 620 F.3d 739, 741 (7th Cir. 2010).
216. Id.
217. Id. at 741–42.
218. Id.
219. See id. at 743, 747.
220. Id. at 743 (citing Cruz v. Safford, 579 F.3d 840, 843–44 (7th Cir. 2009))
(emphasis added).
221. Compare Prine, 620 F.3d at 743 (requiring that the officer’s actions be
intentional), with Henry v. Purnell, 652 F.3d 524, 531–32 (4th Cir. 2011) (en banc)
(requiring that the officer’s actions be reasonable under the circumstances).
222. Compare Lewis v. Downy, 581 F.3d 467, 475, 479 (7th Cir. 2009), with
Landis v. Baker, 297 F. App’x 453, 461 (6th Cir. 2008).
316
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
H. Eighth Circuit
The Eighth Circuit has decided two influential and often cited
cases about the use of Tasers by law enforcement officers.
In the first case, Brown v. City of Golden Valley, Brown and her
husband were stopped for speeding by a police officer who suspected
that Brown’s husband was intoxicated.223 Brown became frightened
during the encounter and attempted to call emergency services for
help.224 Officer Zarrett demanded that Brown hang up the phone, but
Brown replied that she was afraid and wanted to stay on the phone
with emergency services.225 Without any warning, Officer Zarrett
tased Brown.226 In holding that Officer Zarrett was not entitled to
qualified immunity, the Eighth Circuit used a two-step process to
determine qualified immunity by asking whether the alleged facts
equate to a violation of a federal right, and whether that right was
clearly established.227 The court weighed the Graham factors to
balance that Brown was suspected of a minor crime; that the situation
was not “tense, uncertain, or rapidly evolving”; and that there was
little or no threat to officer safety because Brown was not actively
resisting arrest or attempting to flee.228
In the second case, McKenny v. Harrison, two officers served an
arrest warrant at Barnes’s home.229 The officers knew that Barnes had
previously evaded arrest.230 This time, Barnes was attempting to flee
toward a second-story window when he was tased.231 Unfortunately,
Barnes fell through the window, off the roof, and landed on the
ground. He died from his injuries four days later.232 The court used
the Graham multifactor balancing test and found it persuasive that
Barnes was attempting to evade arrest. The court gave Officer
Harrison the benefit of the doubt in making a split-second decision to
223. 574 F.3d 491, 494 (8th Cir. 2009).
224. Id.
225. Id.
226. Id.
227. Id. at 496; see Saucier v. Katz, 533 U.S. 194, 199 (2001), abrogated by
Pearson v. Callahan, 129 S. Ct. 808 (2009).
228. Id. at 496–97 (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).
229. 635 F.3d 354, 356–57 (8th Cir. 2011).
230. Id. at 357.
231. Id.
232. Id. at 357–58.
2012]
DON’T TASE ME BRO
317
tase the suspect. Here, the court equated tasing Barnes with an
attempt to tackle him.233
In concurrence, Judge Diana Murphy noted that courts do not
have a cognizable law about Tasers, and as Taser technology
develops, the unique nature of the weapon will lead to more lethal
results.234 Judge Murphy properly asserted that the law on Tasers is
still developing, and no court has adequately determined what level
of force Tasers constitute.235 The Judge further pointed out that many
cases result in qualified immunity since the law is still evolving, and
local law enforcement agencies across the country reflect differing
views of how the Taser measures up on the Use-of-Force
Continuum—some units only allowing for Tasers when deadly force
is allowed and others when any use of force is justified.236
The goal of this Article is to give some background on and some
teeth to Judge Murphy’s argument but with a different conclusion.
Judge Murphy seems to argue that law enforcement officers should
reconsider the use of Tasers as a whole.237 Alternatively, this Article
argues that Tasers are life-saving tools at police disposal. But the law
needs to determine what level of force a Taser constitutes, so that law
enforcement officers may use Tasers in an informed and
constitutional manner.
I. Ninth Circuit
Much of the “action” surrounding Taser use comes out of the
Ninth Circuit, which reverses its own Taser-related decisions at an
alarming rate. The Ninth Circuit has decided a number of Taser
cases, but this Article will focus on the three seminal cases: Bryan v.
MacPherson,238 Brooks v. City of Seattle,239 and Mattos v.
Agarano.240 The Ninth Circuit is the only circuit that makes any real
distinction between a Taser used in dart-stun mode and drive-stun
mode. In Bryan, Bryan was pulled over for driving without a
233.
234.
235.
236.
237.
238.
239.
240.
Id. at 360 (referencing Graham, 490 U.S. at 396–97).
See id. at 361–64 (Murphy, J., concurring).
See id. at 361.
Id. at 362.
See id. at 361–64.
630 F.3d 805 (9th Cir. 2010).
599 F.3d 1018 (9th Cir. 2010).
661 F.3d 433 (9th Cir. 2011).
318
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
seatbelt.241 Bryan was wearing only a pair of boxers, socks, and
sneakers.242 He became very agitated and started screaming the word
“fuck” over and over again. He opened the driver’s side door and got
out despite Officer MacPherson’s repeated warnings to stay in the
car.243 “Once out of the car, Bryan started yelling gibberish and
pounding his thighs with both fists.”244 At this point Officer
MacPherson tased him, and he fell to the ground and broke four
teeth.245
The Ninth Circuit affirmed the District Court’s denial of qualified
immunity following the rehearings en banc granted in Brooks and
Mattos (discussed infra); MacPherson applied for a rehearing en banc
as well.246
The concurrence and dissent engaged in a heated debate over the
Ninth Circuit’s established precedent that a Taser in dart-stun mode
constitutes an intermediate use of force.247 The Ninth Circuit applied
the Graham multifactor test and found it unreasonable for Officer
MacPherson to think he was in danger.248 Here, it is necessary to note
the difference in views between the Sixth and Ninth Circuits’
decisions. The Sixth Circuit decided that even being on the side of
the road can cause danger to the officer and passing motorists, while
the Ninth Circuit held that the officer and public were in no
danger.249
Judge Kim Wardlaw discusses a seemingly exhaustive group of
cases and police reports that find the Tasers to be an “intermediate”
241.
242.
243.
244.
245.
246.
247.
Bryan, 630 F.3d at 816 (Tallman, J., dissenting).
Id.
Id.
Id.
Id. at 816–17.
See id. at 809–10 (Wardlaw, J., concurring); see also infra pp. 319–21.
Bryan, 630 F.3d at 809–10.
After mischaracterizing the record, misstating our holding, and
attacking our opinion for language it does not in fact contain,
Judge Tallman ultimately bases his dissent to our decision against
rehearing en banc upon the largely unsupported and nonsensical
belief that use of a device designed to fire a dart up to one-half
inch into bare skin and deliver a 1200 volt charge somehow does
not constitute an intermediate use of force.
Id.
248. Id. at 812.
249. Compare id. (Wardlaw, J., concurring), with Williams v. Sandel, 433 F.
App'x 353, 361 (6th Cir. 2011).
2012]
DON’T TASE ME BRO
319
use of force; however, only two of the cases that Judge Wardlaw cites
outside of the Ninth Circuit actually use the term “intermediate,” and
those two cases are unpublished.250 Instead, many of the cases Judge
Wardlaw cites describe the uses and effects of Tasers251 as
significant,252 moderate,253 or in some cases, simply more than de
minimus.254 Importantly, Judge Wardlaw notes that the holding in
Bryan applies only to the use of a Taser in “dart mode.”255 In his
dissent, Judge Richard Tallman argues that Tasers are not an
intermediate use of force because the risk of injury is very low. He
added that Tasers should be classified as “equivalent or even less
force than pepper spray.”256
On the other hand, Brooks dealt with a Taser used in drive-stun
mode.257 Brooks initially found that the use of a Taser in drive-stun
mode “was more on par with pain compliance techniques, which . . .
involve a ‘less significant’ intrusion upon an individual’s personal
security than most claims of force.”258 In Brooks, the court initially
held that officers were entitled to qualified immunity for tasing a
seven-month pregnant woman who was pulled over for speeding in a
school zone and refused to sign the ticket.259 In that case, the officers
gave Brooks ample warning that they were going to tase her,
explained what a Taser would do, and attempted pain-compliance
techniques to remove Brooks from her vehicle.260
Conversely, in Mattos, police responded to a domestic dispute
between Mattos and her husband.261 When the police entered the
250. See Bryan, 630 F.3d at 810–11 (Wardlaw, J., concurring).
251. See, e.g., Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993); Cavanaugh v.
Woods Cross City, No.1:08-CV-32-TC-BCW, 2009 WL 4981591, at *5 (D. Utah
Dec. 14, 2009), aff'd, 625 F.3d 661 (10th Cir. 2010).
252. See, e.g., Oliver v. Fiorino, 586 F.3d 898, 903 (11th Cir. 2009); see also
Beaver v. City of Federal Way, 507 F. Supp. 2d 1137, 1144 (W.D. Wash. 2007).
253. See, e.g., Crowell v. Kirkpatrick, 667 F. Supp. 2d 391, 408 (D. Vt. 2009);
Cyrus v. Town of Mukwonago, No. 07-C-1035, 2009 WL 1110413, at *21 (E.D.
Wis. Apr. 24, 2009), rev'd on other grounds, 624 F.3d 856 (7th Cir. 2010).
254. See, e.g., Orem v. Rephann, 523 F.3d 442, 447–48 (4th Cir. 2008).
255. Bryan, 630 F.3d at 812 (Wardlaw, J., concurring).
256. Id. at 820 (Tallman, J., dissenting).
257. Mattos v. Agarano, 661 F.3d 433, 436–37 (9th Cir. 2011).
258. Brooks v. City of Seattle, 599 F.3d 1018, 1027–28 (9th Cir. 2010), aff’d in
part, rev’d in part sub nom. Mattos, 661 F.3d 433.
259. Mattos, 661 F.3d at 436–37.
260. Id. at 437.
261. Id. at 438.
320
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
home to check on Mattos and her daughter, the officers decided to
arrest her belligerent husband.262 Mattos stood between Officer
Agarano and her husband, and she continuously asked for everyone
to move outside so her children were not awoken.263 Agarano moved
closer to Mattos’s husband, and Mattos put her hands up to stop
Agarano from walking into her.264 Without warning, Officer Agarano
tased Mattos in dart-stun mode.265
The officers in both Brooks and Mattos were initially denied
summary judgment based on qualified immunity, and in both cases,
qualified immunity was granted on appeal to the Ninth Circuit.266 The
Ninth Circuit granted en banc review to hear both cases and issued
one consolidated opinion.267
The Ninth Circuit used both the Saucier v. Katz two-part test and
the Graham multifactor balancing test. The court determined that the
“most important Graham factor is whether the suspect posed an
immediate threat to the safety of the officers or others.”268 The court
also noted the difficulty in determining whether a violation is clearly
established, citing the Supreme Court’s recent holding in Ashcroft v.
al-Kidd, which stated that courts should not “define clearly
established law at a high level of generality.”269
In reviewing Brooks’s excessive force claim, the court
determined that the record was not sufficient “to determine what level
of force is used when a Taser is deployed in drive-stun mode.”270
Instead, the court applied the Graham multifactor balancing test and
held that speeding in a school zone is not a “severe crime”; Brooks
posed no potential threat to officers; and that while Brooks resisted
arrest, she did so nonviolently.271 The court found that the evidence
weighed in Brooks’s favor, especially because she was seven-months
pregnant, and the officers tased her three times in rapid succession.
So the officer’s use of force was constitutionally excessive.272
262.
263.
264.
265.
266.
267.
268.
269.
270.
271.
272.
Id. at 438–39.
Id. at 439.
Id.
Id.
Id. at 436.
Id. at 436 n.1.
Id. at 440–41.
Id. at 442 (citing Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011)).
Id. at 443.
Id. at 444–45.
Id. at 445.
2012]
DON’T TASE ME BRO
321
The court next turned to the current law to determine if the
officers were entitled to qualified immunity. The court looked at
several decisions by other circuits, including Russo273 from the Sixth
Circuit, Hinton v. City of Elwood274 from the Tenth Circuit, and
Draper v. Reynolds275 from the Eleventh Circuit. But the court
distinguished each case and held that the law was not sufficiently
clear for the officers to know that their actions violated Brooks’s
constitutional rights.276
The court then turned to Mattos’s claim and similarly found that
the officers used excessive force against Mattos.277 The court again
found that the crime was not severe.278 The court determined that
Mattos posed no threat to the officers, and that asking the parties to
move outside so as not to wake her children does not constitute
resisting arrest.279 Looking at the totality of the circumstances, the
court noted that the officers were in an overall dangerous situation
because of Mattos’s husband, who was clearly violent, hostile, and
large. The court added that domestic-violence situations are
considered especially dangerous for police.280 But the court held that
it is illogical to allow officers “in response to domestic disputes . . .
[to] use an intermediate level of force on the non-threatening victim
of a domestic dispute whom they have come to protect.”281
Finally, the court determined that at the time of Mattos’s tasing
there was simply “no Supreme Court decision or decision of [the
Ninth Circuit] addressing the use of a taser in dart mode”; thus the
officers were entitled to qualified immunity because the law was not
clearly established.282
273. 953 F.2d 1036 (6th Cir. 1992).
274. 997 F.2d 774 (10th Cir. 1993).
275. 369 F.3d 1270 (11th Cir. 2004).
276. Mattos, 661 F.3d at 448.
277. Id. at 448–51.
278. Id. at 449 (noting that Mattos did not move in between the officer and her
husband but was already there when the officer announced that he planned to arrest
Mattos’s husband).
279. Id. at 449–50.
280. Id. at 450 (“More officers are killed or injured on domestic violence calls
than on any other type of call.”).
281. Id.
282. Id. at 452 (internal quotation marks omitted).
322
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
J. Tenth Circuit
The Tenth Circuit first dealt with Taser use and excessive force in
Casey v. City of Federal Heights.283 Casey removed a court file from
the court house (a possible misdemeanor) to retrieve his wallet but
planned to return it.284 On his way back in, Officer Sweet, with very
little warning, jumped on Casey’s back and ripped his shirt as Officer
Lor tased him.285 Once on the ground in handcuffs, another officer
tased Casey again.286 The court followed the Graham multifactor test
to determine that Casey holding his own file may not have been a
crime at all. Casey did not pose an immediate threat to anyone’s
safety, and he was not resisting or trying to evade arrest; thus, the
officers’ actions constituted an excessive-force violation.287
To determine if the violation was clearly established, the court
“adopted a sliding scale . . . . The more obviously egregious the
conduct in light of prevailing constitutional principles, the less
specificity is required from prior case law to clearly establish the
violation.”288 The court further held that this violation was so clear
and shocking that any officer should have known that these actions
violated an individual’s constitutional rights and were subject to civil
liability.289
Similarly, in Cavanaugh v. Woods Cross City, the court held that
the use of a Taser is a severe intrusion into a person’s Fourth
Amendment interest.290 In Cavanaugh, Cavanaugh was suspected of
assaulting her husband.291 She walked out of the house, possibly with
a knife. When officers found her, they tased her in the back without
warning.292 The court applied the Graham multifactor test and
determined that because officers responded to a nonemergency call to
find Cavanaugh, she was not suspected of a serious crime or even any
283.
284.
285.
286.
287.
288.
289.
290.
291.
292.
509 F.3d 1278 (10th Cir. 2007).
Id. at 1279–80.
Id. at 1280.
Id.
Id. at 1281–82.
Id. at 1284 (internal quotation marks and citation omitted).
Id. at 1286.
625 F.3d 661, 665 (10th Cir. 2010).
Id. at 665.
Id. at 663.
2012]
DON’T TASE ME BRO
323
crime.293 Also, she did not pose an immediate threat and was not
fleeing when she was tased in the back.294
To determine if the officers should receive qualified immunity for
the constitutional violation, the Tenth Circuit noted that “Supreme
Court or Tenth Circuit cases directly on point” can often clearly
establish a constitutional violation.295 The court further held that
“[o]n-point cases are particularly important when the constitutional
question involves a balancing test.”296 Here, the court relied on its
prior decision in Casey, which put the officers on notice that “tasing a
non-violent misdemeanant who appeared to pose no threat and who
was given no warning or chance to comply with the officer’s
demands” was clearly unconstitutional, and thus qualified immunity
must be denied.297
K. Eleventh Circuit
The preeminent case out of the Eleventh Circuit is Draper. The
court held that in certain circumstances an officer may preemptively
tase a subject rather than waiting for any assaultive behavior to
occur.298 In Draper, Reynolds stopped Draper for a tag light violation
and asked Draper to meet him behind the truck.299 Draper became
agitated, began screaming, and continuously refused to retrieve his
driver’s license and insurance information, or submit to an arrest.300
Alone at the scene, Reynolds tased Draper.301 The court applied
Saucier’s two-part test and the Graham multifactor test to determine
that the officer was allowed to preemptively tase Draper.302 The court
was persuaded that Draper was not complying with Reynolds’s
verbal requests, and that attempting to handcuff Draper may have
escalated the situation to a serious struggle in which either individual
could have been more seriously hurt.303
293.
294.
295.
296.
297.
298.
299.
300.
301.
302.
303.
Id. at 665.
Id.
Id. at 666.
Id.
Id. at 667.
369 F.3d 1270 (11th Cir. 2004).
Id. at 1272.
Id. at 1273.
Id.
Id. at 1277–78.
Id. at 1278.
324
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
In 2012, the Eleventh Circuit addressed what constitutes
excessive and unreasonable force with regards to Tasers. The court
held that the factors involved in determining whether force is
excessive and unreasonable include the severity of the crime, the
threat posed, the level of resistance, and the balance of interests.304
The critical questions the Eleventh Circuit will ask in a Taser
excessive force claim are whether a suspect continuously resists
arrest, is incapacitated, and the type of force that would be
dangerous.305 But the court has not addressed the level of force or
type of intrusion a Taser constitutes.
L. District of Columbia Circuit
The Circuit Court for the District of Columbia has no caselaw
about Taser use or excessive force.
CONCLUSION
State and federal law enforcement agencies have incorporated
Tasers into their everyday arsenal. But the constitutionality of using
this weapon depends on the officer’s jurisdiction and if the officer’s
internal regulations allow it. And internal regulations vary widely
from department to department. The proper regulations responding to
noncompliance can be from verbal commands to lethal force on the
Use-of-Force Continuum.
The law provides for citizens to recover for use of force that
violates their Fourth Amendment right to be free of unreasonable
searches and seizures through § 1983 for state actors and Bivens for
federal actors. But the circuits cannot agree on how to define what
force a Taser constitutes and how to analyze Taser cases and
qualified immunity as a whole. Each circuit weighs different factors
in defining excessive force and qualified immunity. For example,
only the Ninth Circuit makes a meaningful distinction between
Tasers used in drive-stun mode and in dart-stun mode. The weapon
behaves much differently depending on each mode, so it carries a
different level of intrusion. All courts should make this distinction in
304. Hoyt v. Cooks, 672 F.3d 972, 978–80 (11th Cir. 2012).
305. Id. at 980.
2012]
DON’T TASE ME BRO
325
determining what level of force a Taser constitutes.306 The First,
Second, Third, Fourth, Fifth, Eighth, Tenth, Eleventh, and District of
Columbia Circuits do not fare to determine what level of force a
Taser constitutes but use the Graham multifactor test to determine
reasonableness.
Of the circuits that attempt to determine what force a Taser
constitutes, the Sixth Circuit holds that a Taser uses substantial
force,307 the Seventh Circuit holds that a Taser is at least de minimus
force,308 and the Ninth Circuit held that a Taser in dart-stun mode is
an intermediate level of force but expressly refused to make a
determination on Tasers in drive-stun mode.309 Finally, while most
circuits use the Saucier v. Katz test to determine qualified immunity,
the Seventh Circuit has created a four-part test, including a
requirement that the act be intentional, and the Fourth Circuit allows
for liability for officer negligence.310
Constitutional violations and subsequent civil liability under §
1983 should not be predicated on what the individual police
department or agency decides is excessive. In other words, there is a
constitutional violation if a Taser is used in a jurisdiction that only
allows Tasers at the aggressive stage in the Use-of-Force Continuum,
but that same action would not be a constitutional violation in a
jurisdiction that allows use of Tasers at the tactical level on the Useof-Force Continuum. Furthermore, those two jurisdictions taken
together do not clearly establish the law for any law enforcement
agent who must cross jurisdictional lines, and that agent cannot be
expected to know the laws and idiosyncrasies of each circuit.
Having unclear and different laws across the jurisdictions will
result in an effective bar on recovery for individuals whose Fourth
Amendment rights were violated because the law will not, and
cannot, be clearly established. As the Federal Courts of Appeals
remain split on this issue, so does the potential to cause injustice,
such as different circuits interpreting the same federal laws
306. See generally Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010)
(Wardlaw, J., concurring) (discussing the difference between the constitutional
intrusion of a Taser in drive-stun mode and dart-stun mode); supra part I.C.
307. See Landis v. Baker, 297 F. App'x 453, 461 (6th Cir. 2008).
308. See Lewis v. Downy, 581 F.3d 467, 475 (7th Cir. 2009).
309. See Bryan, 630 F.3d at 826 (Wardlaw, J., concurring).
310. Compare Forrest v. Prine, 620 F.3d 739, 743 (7th Cir. 2010), with Henry v.
Purnell, 652 F.3d 524, 535 (4th Cir. 2011) (en banc).
326
THOMAS M. COOLEY LAW REVIEW
[Vol. 29:3
differently, forum shopping to find a favorable court, and less
fortunate litigants spending extraordinary amounts of money on an
uncertain and unpredictable issues.311 A determination on the level of
force Tasers constitute in both dart-stun and drive-stun mode is ripe
for a decision by the Supreme Court, and doing so will clarify the law
for litigants on both sides of § 1983 and Bivens claims.
311. See, e.g., Catlett, supra note 107, at 1052.