On
Monday, January 14, 2016, the 4th Circuit of Appeals handed down a
decision restricting the use of TASER in certain circumstances. The entire state of West Virginia is within 4th
Circuit so decisions such as this need to come to the attention of police
officers within the state. In this case,
Armstrong’s estate sued the Village of Pinehurst, NC, three Pinehurst police
officers, and TASER International. This
case originated in the North Carolina state court system. The decision of that court was the officers
were found to have qualified immunity.
This means there wasn’t any clearly established law in this area so the
officers can’t be found to be violating anything (my apologies to my friends
who are lawyers if I got this definition wrong). The North Carolina judge also found the use
of force was not unreasonable in a summary judgment. The estate appealed both decisions to the 4th
Circuit.
Setting the stage:
Ronald
Armstrong suffered from bipolar disorder and paranoid schizophrenia. Among the other background factors, he “had
been off his prescribed medication for five days and was poking holes through
the skin on his leg ‘to let the air out.’”
His sister convinced him to go the hospital in Pinehurst for
evaluation. After he checked himself in,
he became frightened during the examination and left. The examining physician decided Armstrong was
a danger to himself and issued an “involuntary commitment” order to require his
return to the hospital. It is unclear if
the officers knew any part of this background.
One
thing they did know is that Armstrong was 5-11 and 262 lbs at the time of the
encounter. Officers located Armstrong
near the hospital, but the order allowing Armstrong to be forcibly returned to
the hospital wasn’t yet finalized. So
the officers waited. They waited for 20
minutes for this order to be signed.
When it finally was, the doctor checked a box on this order saying
Armstrong was a danger to himself. The
box saying a he was a danger to himself and OTHERS was NOT checked. This is a pivotal decision point.
During
the wait, Armstrong passed the time by eating grass and dandelions, chewing on
some sort of gauze-like substance, and putting cigarettes out on his
tongue. Also during this wait, Armstrong
complied with officer’s requests to move further away from the road. Officers engaged Armstrong in idle
conversation. He was unarmed and made no
verbal threats to anyone according to the decision.
The Incident:
Once
officers received word via radio the order was finalized, “the three police
officers surrounded and advanced toward Armstrong – who reacted by sitting down
and wrapping himself around a four-by-four post that was supporting a nearby
stop sign.” The officers tried to pry
his arms and legs from the post, but he had too tight of a grip. Also present were two hospital security
guards and Armstrong’s sister. At this
point, however, only the police officers were attempting to remove
Armstrong. According to the decision,
there was no further attempt at conversation with him until one officer told
another to use his TASER. This was about
30 seconds into the physical confrontation.
Officer Gatling drew his TASER and announced to Armstrong that if he did
not let go of the post, he would be “tased.”
When this warning didn’t work, Gatling drive-stunned Armstrong five
separate times over a two-minute period.
By all accounts, this only increased Armstrong’s resistance.
After
the futile TASER use, the two hospital security guards jumped into the
fray. This added assistance, along with
what I personally believe was fatigue on Armstrong’s part, provided enough help
to remove him from the post and put him prone on the ground. The struggle continued. Armstrong’s sister mentioned he verbally
complained about being choked, but no one saw officers apply any choke
holds. The sister said she saw officers
“pull his collar like they were choking him” during their struggle. To digress a moment, I would have pointed out
to the judges that if a person makes the verbal claim of being choked he isn’t
being choked. One needs air to form
words. I would also point out the
difference between a neck-restraint and choke.
They are not the same thing and those terms should NEVER be considered
interchangeable.
Getting
back to the struggle, Armstrong was prone on the ground with officers working
to apply handcuffs. Two officers pinned
him by one placing a knee on his back and the other by standing on his back. At some point even Armstrong’s sister was
helping the group hold Armstrong down. After
the cuffs were applied, Armstrong continued to kick at one of the
officers. To stop this, officers
shackled his legs also. When officers
stood to “collect themselves,” or in other words rest, they all noticed
Armstrong had stopped moving. His sister
pointed out he wasn’t responsive and asked officers to check on him which they
did immediately. When they turned him over,
his skin had turned a bluish color and didn’t appear to be breathing.
An
ambulance was called and CPR administered by officers. EMS transported him to the nearby hospital
where revival attempts continued.
However, ultimately they were not successful. Armstrong was pronounced dead shortly after
admission. According to the log of
communications of Pinehurst PD, six and one-half minutes elapsed from the time
officers were advised the commitment order was finalized to the request for the
ambulance.
The Deliberation and Decision:
As
stated before, Armstrong’s sister sued the city, officers, and TASER. In a 3-0 decision, the officers were found to
have qualified immunity. This means the
law hasn’t been sufficiently established in this particular area. Thus, no officers faced any civil
penalty. However as also mentioned, two
of the three judges said the TASER use was unreasonable. In my opinion, this is
in error. I base this off of reading the
decision, my 27 years as a police officer, my nearly 18 years as a police
trainer, and just over 10 years as a TASER instructor.
This
use of force MAY be out of my own agency’s policy as currently written. But, I would need to look at the official
reports to make a more informed decision on that. Based upon the account in the case decision,
the TASER use may have been a bit
premature. But they did attempt a
hands-on solution and verbally warned Armstrong prior to the drive-stun. Remember, out of policy uses of force doesn’t
necessarily mean unreasonableness and hindsight isn’t supposed to be used. From what I read, I don’t see anything
unreasonable.
The
majority looked at the Graham v Connor factors of severity of the crime at
issue, the extent of the suspect’s threat, and whether the suspect was actively
resisting or attempting to evade arrest by flight. They looked at these factors in order. The first factor, and in my opinion a bit
puzzling, they decided didn’t apply.
Since this was a mental illness commitment order, it wasn’t a
crime. They quoted some older 4th
Circuit cases as precedent noting one which said “the severity of the crime
cannot be taken into account because there was no crime.” The majority took note of the commitment
saying Armstrong was only a danger to himself and basically decided if it was
taken into account, it would favor Armstrong anyway. I can agree there was no crime, but a
commitment order justifies some sort of custody, so it would be reasonable for
the officers to view it along the same lines as an arrest warrant.
The
majority seemed to reverse course a bit in the next paragraph noting this first
Graham factor is intended to determine if an officer had a reason to believe a
subject was potentially dangerous. They quoted another 4th Circuit
case from 2015, Smith v Ray. But, they
quote a whole bunch of other cases including one particularly troubling one,
Bryan v MacPherson (9th Circuit, 2010) to focus on the fact that
Armstrong was unarmed and outnumbered 5-1.
They disregard any potential for danger and use these several cases to
prefer officers use de-escalation tactics and less force to gain control of
such unarmed mentally ill persons. One
particularly troubling quote from this case is, “Where the seizure’s sole
justification is preventing harm to the subject of the seizure, the government
has little interest in using force to effect that seizure.”
Why
is that quote troubling to me? Venture
with me to a scenario of a suicidal person with a knife to their throat. They are passive, outnumbered, and seated on
a couch in their own residence. This
department and many others have correctly used the TASER to subdue an
individual in this case. In the incident
I’m thinking of, there were a minute or so of officers trying to first talk the
person out of the knife. Granted there
is the presence of a weapon in the hands of the subject, but we are still
causing “significant pain” by using force on the very person we are trying to
prevent being harmed. Replace the TASER
with a 12 gauge bean bag round to the subject’s buttocks or thigh. This will cause even more significant pain,
yet this tool has been and is being used all over the US and Canada to gain
custody of such person with suicidal actions.
I hope the rulings don’t go this far.
The
majority admits the second and third Graham factors justify some, if limited,
use of force (whether Armstrong threatened the safety of others and resisted
the seizure). Note the majority pushing
the term “limited” when referring to use of force. He had been observed earlier “wandering into
traffic with little regard for avoiding the passing cars.” The encounter at issue also occurred a few
feet from an active road. These are
facts in favor of the officers. But,
again, the majority point to the fact that Armstrong was outnumbered,
stationary, seated, and refusing to let go of the post. Despite resisting the seizure, the majority
is insistent that this case required limited force. They didn’t like the “brief” 30-second
attempt to physically remove him from the post before a TASER use was decided
on. They again quote the 9th
Circuit Bryan v MacPherson case saying, “the level of force varies based on the
risks posed by the resistance.” This is
quite puzzling because at no time in the Armstrong case decision does the
majority suggest the TASER caused the death of Armstrong. It’s as if the majority in this case is
pre-judging the TASER.
The
majority decided the use of the TASER, and only the TASER, was not proportional
“in light of all the circumstances” (Smith v Ray, 4th Circuit
2015). They maintain it is “evident”
since they decided this situation only justified a limited degree of
force. They justify this decision saying
“deploying a TASER is a serious use of force” since it is a weapon designed to
cause excruciating pain (quoting a 2010 10th Circuit case), which
can burn a person’s flesh (quoting a 2008 4th Circuit case). They located a Massachusetts state case from
2015 which the justices there said they “consider the stun gun a per se
dangerous weapon at common law.” They mention another 4th Circuit
case from 2008 (Orem v Rephann[1])
saying the TASER “inflicts a painful and frightening blow.” They again quote the Bryan case from the 9th
Circuit mentioning “the physiological effects, the high levels of pain, and
foreseeable risk of physical injury” which lead the 9th Circuit
judges to conclude the TASER X26 and similar devices are a greater intrusion
than other non-lethal methods of force they have seen.
All
this makes for great writing on their part.
The only problem with their reasoning in applying it to the Armstrong
case, is that in this case the TASER drive-stun DID NOT WORK! Armstrong, by all accounts, apparently
ignored these physiological effects, the high levels of pain, and intensified
his resistance. This “serious use of
force” did nothing to lessen his resistance.
This is not in dispute. What is
in dispute, is what it means.
About
the only thing the majority got right in my opinion is that the use of a
drive-stun is frowned on by many. They
mention the Police Executive Research Forum, the DOJ’s Office of Community
Policing Services, and TASER International itself. Many TASER instructors, including your humble
Captain and Chief, discourage the use of the drive-stun. I have always said in training the drive-stun
will frequently make things worse, lengthen the incident, and ultimately not
work. The majority would have been
better to lead with this. In my opinion,
they would have been on more solid legal ground by saying the officers chose a
method of force which likely wasn’t going to be successful. Even that argument falls apart because they
moved back to a lower level of force by using bodily force and brute strength
to get Armstrong off the post. The part
of the case where an officer is standing on Armstrong, is not even addressed.
I
want to point out one final case the majority quotes, Casey v City of Federal
Heights (10th Circuit, 2007).
The quote they use is, “It is excessive to use a TASER to control a
target without having any reason to believe that a lesser amount of force – or
a verbal command – could not exact compliance.”
I submit this quote actually helps the defense of the officers
involved. They had reason to believe a
lesser amount of force and verbal commands would not exact compliance. This had been tried and failed. Their ridiculous harping that 30 seconds
being too brief tells me these two justices have never been in any serious
physical confrontation. In my opinion,
30 seconds is in fact a very long time in any physical confrontation.
The Analysis:
Of
course all of this means nothing to 4th Circuit. My hope is this case gets appealed to the US
Supreme Court. Since TASER International
is a defendant, I think they’ll be able to appeal it upwards. Having read a lot of case law on police uses
of force, I think the US Supreme Court would overturn this ruling. Of course they may choose not to hear the
case. The language used in this decision
is in line with two cases from the 9th Circuit I am very familiar
with (Brooks v City of Seattle and Bryan v MacPherson).
In
my opinion, this case has far reaching effects beyond that of TASER. It will apply to any of the traditional
police weapons like OC spray and batons.
I think this ruling will also apply to some of the serious hands on
techniques like take downs and tackles.
They say their precedent “leads to the conclusion that a police may only
use serious injurious force, like TASER, when an objectively reasonable officer
would conclude that the circumstances present a risk of immediate danger that
could be mitigated by the use of force.”
They close by saying, “At bottom, ‘physical resistance’ is not
synonymous with ‘risk of immediate danger.’”
I
also strongly disagree with the majority’s statement that their decision “does
not hamper police officers’ ability to do their jobs.” Again, they seem to nullify their own
argument because in their very next sentence they repeat, “Tasing Armstrong did
not force him to succumb to Appellees’ seizure – he actually increased his
resistance in response.” Their analysis
becomes even more disturbing when they state that the majority’s intent with
the Armstrong decision is “to clarify when TASER use amounts to excessive force
in, at least, some circumstances.” That
sounds good. Even the following sentence
sounds fine when they say, a TASER “may only be deployed when a police officer
is confronted with an exigency that creates an immediate safety risk and that
is reasonably likely to be cured by using the TASER.”
It
is their very next sentences that they lose me:
“The subject of a seizure does not create such a risk
simply because he is doing something that can be characterized as resistance –
even when that resistance includes physically preventing an officer’s
manipulations of his body. Erratic
behavior and mental illness do not necessarily create a safety risk
either. To the contrary, when a seizure
is intended solely to prevent a mentally ill individual from harming himself,
the officer effecting the seizure has a lessened interest in deploying
potentially harmful force.”
Where, during the course of seizing an out-numbered
mentally ill individual who is danger only to himself, police officers choose
to deploy a TASER in the face of stationary and non-violent resistance to being
handcuffed, those officers use unreasonable excessive force. While qualified immunity shields the officers
in this case from liability, law enforcement officers should now be on notice
that such TASER use violates the Fourth Amendment.”
The Dissent:
Judge
Wilkinson dissented with the majority.
He admits the case was “close”, but said it was “the very kind of
dispute in which judicial hindsight should not displace the officers’
judgmental calls.” He reiterates the
facts of Armstrong mental state, his actions in traffic, his location near a
roadway, and his unwillingness to return to the hospital as mandated by an
order.
Judge
Wilkinson says it was “undisputed that the officers applied graduated levels of
force – first verbal commands and then a ‘soft hands” approach” before the TASER
is used. The judge concludes from this
by quoting Graham v Connor, “The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make
split-second judgments – in circumstances that are tense, uncertain, and
rapidly evolving – about the amount of force that is necessary in a particular
situation.” He asserts this Graham quote
“pretty much describes the situation” of the Armstrong case.
Judge
Wilkinson’s dissent indicates he is also confused by the majority speaking of
threats and resistance. He said, “what
conduct qualifies as ‘resistant,’ and what rises to the level of a ‘serious
safety threat’ is once again dependent on the actual and infinitely variable
facts and circumstances that confront officers on their beat.” The judge feels the majority’s “abstract
formulation will be of less than limited help to officers wondering what
exactly they man and may not do.”
He
felt Armstrong actually posed some real danger and that “the majority has left
it all up in the air.” He goes on to
accuse the majority of making “vague proclamations about do’s and don’ts” which
“run the risk of incentivizing officers to take no action” thus leaving people
and their possible victims to some “unhappy fate.”
So, What Now?
Armstrong decision TASER criteria #1:
Some offensive action by subject will
be needed
Looking
at the SAPD policy, it appears to be in compliance with the Armstrong
decision. However, care needs to be made
when making a decision to go outside the continuum. The majority decision in the Armstrong
requires some sort of OFFENSIVE action on the part of a subject, i.e. punching
or kicking, threatening same with reasonable ability to carry it out, presence
of a weapon, etc. Make sure to document
them at the very first opportunity you get to.
Write COMPLETE REPORTS WITH COMPLETE DESCRIPTIONS OF A SUBJECT’S
ACTIONS!
If
you are by yourself and the person isn’t threatening in any way, doesn’t have a
weapon, isn’t talking, is not making any offensive actions, then you should be
maintaining your distance. The movement
in the lower federal courts are now requiring some governmental interest in
using a weapon like the TASER, OC spray, ASP baton, etc. Keep yourself safe by taking your time,
maintain radio communications, and keep a good reactionary gap. This guy could just be off his medications,
or he could be trying to sucker you into making a move while his/her confederate
is hidden nearby filming the whole thing.
Armstrong decision TASER criteria #2:
Abandon the drive stun
It
really doesn’t work and ever TASER tells you it isn’t that effective. You had better have some very specific reason
to use a drive-stun. The officers in
this court case should have known if Armstrong was putting cigarettes out on
his tongue, a drive-stun was not going to work.
Armstrong decision TASER criteria #3:
If there are multiple officers, make
a plan if you have time
This
is fact specific. In the Armstrong case,
the officers waited for 20 minutes. They
apparently tried to engage the guy in conversation which did not go
anywhere. They did get him to move
further away from the road. As mentioned
earlier, seeing him put the cigarettes out on his tongue should have told them
something about his pain tolerance.
Maybe slowly getting closer to him as they talked may have worked
better. Standing between him and the
road or anything he could grab on to makes a subject perform some offensive
action which then permits TASER, OC, ASP, etc.
Armstrong decision TASER criteria #4:
If there are some Special
Circumstances or Subject/Factors, feature them PROMINENTLY in any written
report and complaint
The
officers did just this in the Armstrong case noting the closeness of the
roadway and the subject’s physical size.
If a use of force at one level is not effective, an officer needs to
explain fully and convincingly the reason(s) a higher level of force was used. Do not embellish, just report ALL of the
facts.
Armstrong decision TASER criteria #5:
Each 5-second shock of a TASER is
considered a separate use of force
It
isn’t like a punch or kick. It isn’t
like a baton strike. These often occur
in rapid succession. You can’t be
expected to remember the exact number of strikes you administer on a resisting
subject. You are expected to remember an
approximate range. You should know the
difference between 5 or 6 strikes and 15 or 16 strikes. Remember a TASER is different as it has that
5 second exposure time that allows you to observe whether a subject will then
comply with lawful orders.
Armstrong decision TASER criteria #6:
Known or reasonably suspected
mentally ill subjects are now different
Absent
the presence of a weapon or some offensive actions, the courts are expecting
much more talking. When the decision is to
be made to go hands on, they want more of a passage of time than 30
seconds. They will analyze the entire
set of circumstances, so any decision to go hands on MUST be accompanied with
proper justification. Note that simply
failing to comply is NOT proper justification.
My Concerns:
I
share TASER's fear of the movement of the lower courts towards a "minimum
necessary force" standard. It is my hope, however, that the many
cases out there in both the lower federal circuits and US Supreme Court would
prevent this. Language in these cases say such a standard would require
superhuman judgment on the part of the police officer. It also seems to
fly in the face of Graham when dealing with a tense, uncertain, and rapidly
evolving situation.
I
can live with the Armstrong decision, I just think they wrote it poorly.
Their claim that 30 seconds was too brief is just wrong. Their only justification is that the TASER
hurts real bad. Their better claim as I said, was that the guy was just
not aggressive. That means any force should be measured whether TASER or
not. Singling out the TASER only serves to confuse everyone as is trying
to create of new definition of "serious safety threat." Just
talk about Armstrong's lack of aggression and being outnumbered after a 20
minute wait where there was time for deliberation of the officers, and be done
with it.
Again,
I believe if this goes to the US Supreme Court it gets overturned. Most
of the US Supreme Court use of force cases I have read are far better reasoned
and far easier understood. Possibly it's because they get better law
clerks then the circuits. I can't see the US Supreme Court not deciding
that the escalation of force from hand-on force to the TASER was objectively
reasonable. They didn't IMMEDIATELY move to the TASER. They did so
after hand-on force was tried and failed to work. Then there was a verbal
warning prior to the TASER use. The counter argument of hands-on force
ultimately working is weak because it fails to consider the two-minute long
further struggle where the TASER drive-stuns were done, the addition of two more
men actively assisting the three officers, and inevitable fatigue factor on the
part of Armstrong.
One
of my core beliefs as a force options instructor is that the longer an incident
goes on the higher the chances something bad happens. Had the officers used the TASER darts on
Armstrong with darts above and below the waist, then tried to pull his arms off
while he was still under power of the TASER or in the instant the shock stops,
I believe the handcuffs are applied within the first 20-30 seconds. It is then of much higher likelihood Armstrong
doesn’t get fatigued and doesn’t die. I
fully believe had he not died, this lawsuit never gets brought in the first
place.
Bottom
line, this force was reasonable in my opinion.
[1]
They sort of nullify their quote of the Orem case later in the decision because
of differing facts. The majority later
list the facts that Orem was already handcuffed, weighed about 100 lbs, was
female, was in the back of a caged cruiser, and had loosened her ankles from a
hobble restraint when shocked with the TASER.
I think most officers can agree those circumstances on their face are at
least questionable. It seems they
cherry-picked the quote they wanted to make a point we all know. TASERs hurt.
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