The U.S. Court of Appeals for the Eleventh Circuit allowed an excessive force complaint to proceed against a small north Alabama town and police officer who repeatedly tased an elderly motorist suffering from diabetic shock.
The driver, Bob Glasscox, “writhed in pain” as he attempted to comply with the officer’s orders to get out of his truck, the opinion said.
But officer David Moses only gave Glasscox a few seconds between Taser shocks, ultimately administering four five-second shocks in less than a minute, according to the opinion and court filings.
Moses told a backup officer Glasscox was “bleeding all over the place” from the Taser hooks after having taken multiple “rides” on the Taser when he finally got him out of the truck and walked him to the patrol car.
The town of Argo and Moses asked the trial court to dismiss the case on summary judgment but were rebuffed by Chief Judge Karon Bowdre of the U.S. District Court for the Northern District of Alabama, who declined to dismiss Glasscox’s claims for violation of his constitutional rights, negligent hiring and training of its officer and failing to develop an adequate policy concerning Taser use.
The appellate opinion published Wednesday was written by Judge Jill Pryor with the concurrence of Judge Robin Rosenbaum and Seventh Circuit Judge Kenneth Ripple.
In light of “clearly established law, no objectively reasonable officer in Officer Moses’s position could have thought it was lawful to use a Taser repeatedly on an arrestee who was not resisting,” Pryor wrote.
Argo and Moses are represented by Thomas Hale and Richard Whitaker of Birmingham’s Hale Sides.
“While we respect highly the Eleventh Circuit appellate court, the federal qualified immunity prong of ‘immunity from suit’ has been denied once again for the otherwise reasonable actions of a policeman in the split seconds he faced highly uncertain, rapidly evolving and potentially dangerous or deadly circumstances,” Hale said via email.
“While disappointed by the result at this early stage of this litigation, discovery will now commence in detail, and we are confident when all facts are developed, this officer’s conduct will be totally exonerated,” Hale said.
Abbey Clarkson of Lloyd & Hogan and solo Gregory Yaghmai represent Glasscox.
“We are thrilled with the Eleventh Circuit’s well-reasoned decision that adds to the body of case law in which the overzealous police officer is held accountable for wielding unnecessary force against a citizen,” Clarkson said in an email.
“We look forward to taking this case forward to trial as we continue to bring attention to these unjust practices.”
As detailed in the complaint and opinion, Glasscox, now 73, has a history of Type 1 diabetes. He was driving down I-59 in 2014 when he experienced a sudden spike in his blood sugar.
Glasscox is “subject to such episodes, which may cause erratic behavior, confusion, unsteadiness, sweating, blurred vision, and combativeness that may make him appear intoxicated,” said the complaint he filed in 2015.
Glasscox began driving erratically, and other drivers alerted the police. Moses gave chase, following Glasscox for several miles, often at high speeds, until Glasscox drove his truck onto the grass median and stopped.
As shown on Moses’ body camera, the officer ran up to Glasscox’s truck with his gun and Taser out and shouted, “Let’s see your fucking hands.”
Glasscox raised his empty hands and Moses opened the driver’s-side door and shouted for Glasscox to get out.
Moses ordered Glasscox to take off his seatbelt and get out. Glasscox said, “I’m going to get out if you’d shut up” and was reaching for his seatbelt when Moses said, “Don’t you reach,” and deployed the Taser.
The Taser shock came “two seconds after Officer Moses issued his latest order to get out of the truck,” the opinion said.
“The Taser wires latched into Mr. Glasscox’s chest and remained engaged for five seconds while Mr. Glasscox screamed, shook and writhed in pain with his arms and hands curling toward his chest,” it said.
Less than a second after the first Taser shock, Moses again shouted for Glasscox to get out.
“Still howling, Mr. Glasscox attempted to pull one of the Taser wires from his chest, and Moses shocked him again for another five seconds,” Pryor wrote.
Less than a second after the second shock, Moses yelled, “I’ll give it to you again! Get out of the car!” to which Glasscox replied, “I’ll get out if you just leave me alone.”
“Within one second, Officer Moses moved closer and grabbed Mr. Glasscox’s wrist with his free hand, demanded that Mr. Glasscox ‘get out’ and tased Mr. Glasscox a third time, again for five seconds,” the opinion said.
Glasscox shouted “I will,” but before he could get out of truck Moses tased him again.
With Moses holding his wrist, Glasscox struggled out of the truck and was handcuffed and arrested. Glasscox told Moses he had suffered a diabetic shock, and Moses said if that were so he would not be charged.
“Nonetheless, Mr. Glasscox was charged with reckless driving, eluding a police officer and resisting arrest,” the opinion said. A municipal judge declared him guilty in 2015, and he appealed to the county’s circuit court for a determination of guilt before a jury.
“As far as we can tell, Mr. Glasscox is still awaiting a jury trial on the criminal charges,” the opinion said.
Pryor noted that in ruling on summary judgment, the court must consider the evidence in the most favorable light to the non-moving party—in this case, the town and Moses.
“Viewing the evidence in the light most favorable to Mr. Glasscox and drawing all reasonable inferences in his favor, we conclude that Officer Moses violated his constitutional right to be free from the excessive use of force by repeatedly tasing him even though Mr. Glasscox had ceased any resistance and was attempting to comply with Officer Moses’s commands,” Pryor wrote.
“We also conclude that the law was clearly established at the time of Mr. Glasscox’s encounter with Officer Moses that the repeated deployment of a taser on an arrestee who has stopped resisting and is attempting to comply constituted excessive force,” she said.