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Last month, the U.S. Supreme Court vacated a decision of the U.S. Court of Appeals for the Fifth Circuit. The high court sent the case back, instructing the appeals court to give consideration to the court’s recent decision in Tolan v. Cotton, 572 U. S. ___ (2014).

The Tolan decision was only two weeks old when the Supreme Court, on May 19, remanded Thomas v. Nugent, No.13-862. Both Tolan and Thomas were out of the Fifth Circuit and dealt with allegations of excessive force by police—one involving a shooting, the other a tasing.

In Tolan, the Supreme Court said the Fifth Circuit had not given proper weight to evidence offered by Robert Tolan, who sued police after being shot.

In 2008, Jeffrey Cotton, a Texas police officer, shot Tolan in front of Tolan’s parents’ home. Cotton was under the mistaken belief, due to a clerical error by another officer, that Tolan and another man had stolen a vehicle.

Tolan sued Cotton in federal district court, alleging excessive force in violation of the Fourth Amendment. Cotton filed a motion for summary judgment and argued that he was entitled to qualified immunity. Qualified immunity protects government officials from being sued when their conduct has not violated a clearly established constitutional right.

The district court ruled in favor of Cotton, finding his use of force was not unreasonable and did not violate the Fourth Amendment.

The Fifth Circuit affirmed the lower court decision. The appeals court held that Cotton was entitled to qualified immunity regardless of whether he violated the Fourth Amendment because he did not violate a “clearly established” right.

In support of its ruling, the court cited evidence that would lead a reasonable officer in Cotton’s position to believe that Tolan presented an immediate threat to his safety.

For qualified immunity to attach, an official must demonstrate his conduct was objectively reasonable, as in Harlow v. Fitzgerald, 457 U.S. 800 (1982).

In a per curiam opinion, the Supreme Court held that the Fifth Circuit erred in its application of summary judgment. The Supreme Court said the Fifth Circuit improperly sided with the account offered by the police officer. A judge, when deciding an issue raised through a motion for summary judgment, must view the evidence in a light most favorable to the nonmoving party—in this case, the alleged victim of excessive force.

The court vacated the judgment and remanded the case to the Fifth Circuit with instructions to acknowledge and credit evidence in Tolan’s favor when determining whether Cotton’s actions violated clearly established law.

Two weeks later, when faced with a similar issue in Thomas, the court relied on Tolan to resolve the issue.

The second decision also dates back to 2008, this time in Louisiana. The police arrested a man named Baron Pikes. During his arrest, Pikes was tasered at least eight times. Later, at the police station, Pikes fell ill. He later died.

The officer who repeatedly tasered Pikes, Scott Nugent, was fired and charged with manslaughter. He was found not guilty, but the family of Pikes, namely Latrina D. Thomas, sued Nugent in federal court for excessive force.

Nugent’s lawyer argued, as did the police in the Tolan case, that the lawsuit be dismissed because Nugent was acting in his official capacity as a police officer and was entitled to qualified immunity. The trial judge disagreed and allowed the case to move forward to trial. The Fifth Circuit reversed the trial court.

The Fifth Circuit found that lawyers for Pikes’ family had failed to prove that repeatedly tasing a restrained suspect in police custody for failing to comply with a police command violated the Fourth Amendment to the U.S. Constitution.

With the Thomas case heading back to the Fifth Circuit for a review of the facts in a light most favorable to the plaintiff, it is worth looking at the law with regard to excessive force—particularly force involving the use of a Taser.

In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court identified three factors that courts must weigh when determining whether law enforcement personnel have used excessive force: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest.”

At least five circuits have found, under certain circumstances, using a Taser on an individual no longer resisting is excessive force. In the Fourth Circuit, repeatedly tasing “an individual who no longer is armed, has been brought to the ground and is no longer actively resisting arrest” constitutes excessive force, per Meyers v. Baltimore County, 713 F.3d 723 (4th Cir. 2013).

The Sixth Circuit held that a policeman used excessive force when he tasered a handcuffed individual a single time, even though the individual was yelling profanities at the officer. The court held that it is “unreasonable to use significant force on a restrained subject even if some level of passive resistance is presented,” in Wells v. City of Dearborn Heights, 538 Fed. Appx 631 (6th Cir. 2013).

In Cyrus v. Town of Mukwonago, 624 F.3d 856, 862-63 (7th Cir. 2010), the Seventh Circuit denied summary judgment on a claim of excessive force against officers that repeatedly tasered an individual who did not release his hands for handcuffing.

On the other hand, more than a few circuits have approved the use of a Taser to subdue individuals who resist arrest or refuse to comply with police orders. The Eleventh Circuit held the use of a Taser to “effectuate [an] arrest” was reasonable when the individual was “hostile, belligerent and uncooperative,” in Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004). The Tenth Circuit ruled that the use of a Taser to overcome a suspect resisting arrest is reasonable in Hinton v. City of Elwood, 997 F.2d 774, 781 (10th Cir. 1993).

In Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992), the Sixth Circuit found it was reasonable to use a Taser to subdue a paranoid schizophrenic who locked himself in an apartment and disobeyed police orders to open the door and drop his weapon.

In Pennsylvania, success on a claim of excessive force requires a claimant to defeat qualified immunity. A plaintiff must show a violation of a constitutional or statutory right and whether it would have been clear to a reasonable officer that the conduct in question was unlawful in light of clearly established law.

If an officer can show at least one prong was not met, then qualified immunity applies and the suit is barred, per Reedy v. Evanson, 615 F.3d 197 (3d Cir. 2010). 

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, The Executioner’s Toll, 2010, was recently released by McFarland & Co. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.